The adequacy of rape criminalisation in modern South Africa: A comparative study

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

The adequacy of rape criminalisation in modern South Africa: A comparative study

Authors: Rinda Botha and Janine Peens

ISSN: 1996-2118
Affiliations: BIuris (UFS) LLB (UFS) LLM (UFS) LLD (UFS), Senior Lecturer, Faculty of Law, University of the Free State; LLB (UFS) LLM (UFS)
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 83 – 122
https://doi.org/10.47348/SACJ/v36/i1a5

Abstract

In the past fifteen years, South Africa has embarked on substantial reform of its sexual offences laws. In many respects, these reforms are like those in other jurisdictions, addressing issues of definition and sentencing. Yet the country’s rape statistics remain startlingly high, and rape sentencing remains inconsistent. To assess the adequacy of rape criminalisation in South Africa, this article starts off with an overview of relevant local case law. It becomes clear that, although the state is not always consistent in prosecuting the accused of all variants of sexual penetration, prosecution in terms of the current, broader definition of rape is common, as is the imposition of minimum sentences for these convictions. Also, courts remain inconsistent in interpreting which factors should count as substantial and compelling circumstances to justify a lesser sentence. A comparative look at the legal position in England and Canada firstly confirms that rape remains a global concern, and that South Africa is not the only jurisdiction that has grappled with defining and sentencing the offence. Yet South Africa could stand to learn a few lessons from these two countries to further improve its law on rape. Recommendations include adopting a more succinct definition of rape, introducing more conduct-specific charges and sentencing (similar to England’s ‘assault by penetration’), and providing a well-defined list of substantial and compelling circumstances to establish greater legal clarity in the sentencing of rape offenders.

Wenzeni uZuma: A jurisprudential study of the unlawfulness of corruption in Africa

by | Jul 15, 2023 | SACJ, SACJ V35 I3 2022

Wenzeni uZuma: A jurisprudential study of the unlawfulness of corruption in Africa

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2118
Affiliations: LLB (Wits) LLM (Cape Town) PhD (Nottingham), Lecturer in Public Law, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 35 Issue 3, p. 285 – 306
https://doi.org/10.47348/SACJ/v35/i3a1

Abstract

In response to the multitude of corruption allegations levelled against him, former president Zuma and his supporters typically sing a song called ‘Wenzeni uZuma’ (‘What has Zuma done wrong?’). This paper takes up this question from a jurisprudential (theoretical) point of view; that is, by probing the various senses in which prima facie corrupt conduct can be said to be unlawful in Africa. This question is explored through the application of the conceptual machinery of argumentation theory and criminal law theory. This paper discusses the Feinbergian, positivistic, contractual, legal moralism and the argumentum ad ignorantiam senses in which prima facie corrupt conduct can be said to be unlawful. It is then argued that prima facie corrupt conduct should most appropriately be conceived of as being unlawful in the contractual sense that a designated official diverts a particular benefit away from a de jure beneficiary and towards a de faco beneficiary.

Mixing old and new wisdom for the protection of image-based sexual abuse victims

by | Jul 15, 2023 | SACJ, SACJ V35 I3 2022

Mixing old and new wisdom for the protection of image-based sexual abuse victims

Author: BN Martin

ISSN: 1996-2118
Affiliations: LLB (UFS) LLM, Lecturer in Law, School of Law, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 35 Issue 3, p. 307 – 330
https://doi.org/10.47348/SACJ/v35/i3a2

Abstract

Image-based sexual abuse, more popularly but inadequately referred to as ‘revenge porn’, has emerged as a prolific modern-day plague. This author asserts that, in light of its impact and severity, the criminal law, as opposed to private law remedies, is the preferable legal response to image-based sexual abuse (IBSA). Thus, it is commendable that South African lawmakers have responded to IBSA with criminal sanctions, specifically targeting this phenomenon through s 18F of the Films and Publications Amendment Act 11 of 2019 and s 16 of the Cybercrimes Act 19 of 2020. Despite having two acts responding to one problem, these new legislative additions mix admirably with the existing offence of crimen injuria in providing adequate protection for victims of IBSA in South Africa. Where the broadly defined offence of crimen injuria lacks detail, s 18F and s 16 provide more precision. Section 18F and s 16, although not without internal issues, clarify the extent of unlawful conduct, provide clear penalty guidelines, highlight the intolerable nature of IBSA and offer additional support measures to victims of IBSA through protective orders. However, while advantageous, these legislative additions may not respond effectively to all cases of IBSA, especially when s 18F and s 16 are overly restrictive in application. Where the perpetration of IBSA warrants a harsher penalty than what is stipulated in both Acts or where IBSA subtly evades the protection of both Acts, the offence of crimen injuria provides a flexible alternative. It is this mutually supportive interplay that validates the assertion that South African law does provide adequately for victims of IBSA.