Towards resuscitating the ailing public violence jurisprudence – lessons from history

by | Oct 12, 2019 | SACJ V30 I1 2017

Towards resuscitating the ailing public violence jurisprudence – lessons from history

Authors Khulekani Khumalo

ISSN: 1996-2118
Affiliations: Lecturer, University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 30 Issue 1, p. 23 – 37

Abstract

The recent spate of protests organised under the #FeesMustFall campaign have not only exposed all that is wrong with the existing political and economic order, but also the shortcomings of the crime of public violence in achieving its objective of maintaining peace and order as well as to afford protection against the invasion of the rights of others during violent protests. Fortunately, the crime of public violence has a long developmental history from which lessons could be drawn as to how these shortcomings and other challenges facing the crime can best be resolved or remedied. Therefore, the purpose of this article is to venture into the history of the crime of public violence in order to draw lessons which could help identify and possibly remedy the challenges facing the crime of public violence. After all, these challenges threaten the effcacy of the crime and, in turn, cause the public violence jurisprudence to be ailing and to be in need of being resuscitated. Ultimately, it is introspection of this nature that will ensure the resuscitation of public violence jurisprudence and the consequent realisation of the interests sought to be protected by this crime.

The end of the search for a fifth jurisdictional fact on arrest on reasonable suspicion: A review of contemporary developments

by | Oct 12, 2019 | SACJ, SACJ V30 I1 2017

The end of the search for a fifth jurisdictional fact on arrest on reasonable suspicion: A review of contemporary developments

Authors Chucks Okpaluba

ISSN: 1996-2118
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 30 Issue 1, p. 1 – 22

Abstract

The Constitutional Court has had the last word on the argument that had raged before the high courts in the last decade, but which was rejected by the Supreme Court of Appeal half a decade ago in Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA), to the effect that the Bill of Rights is not a ffth jurisdictional fact to the requirements of s 40(1)(b) of the Criminal Procedure Act 51 of 1977. Rather than being an additional urisdictional fact, the Constitutional Court has held in MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) (MR), that a police offcer faced with the exercise of the discretion to arrest a child must not only balance the conflicting interests, but must take into consideration the constitutional requirements of the best interests of the child and the limitation regarding the detention of a child in s 28(2) and 28(1)(g) of the 1996 Constitution. Failure on the part of the police to bring these constitutional protections afforded the child to bear on the decision to arrest or not to arrest, renders such a decision unlawful and unconstitutional. While the search for a fifth jurisdictional fact may have ended at this juncture, the Constitutional Court judgment in MR marks the beginning of the infusion of s 28(2) and 28(1)(g) of the Bill of Rights into the exercise of the discretion to arrest and detain a child in the circumstances of s 40(1) of the CPA.