The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?

Author Delano Cole van der Linde

ISSN: 1996-2118
Affiliations: LLB (Stell), LLM (Stell), LLD (Stell), Lecturer, Faculty of Law, North-West University. This article is written based on research conducted for my LLD dissertation at Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 273 – 301

Abstract

The Prevention of Organised Crime Act 121 of 1998 (POCA) was promulgated in order to, inter alia, supplement the common law insofar it was ineffective in dealing with criminal gang activity, particularly in the Cape Flats in the Western Cape. However, the new measures appear to be substantially similar to the common law, therefore, nullifying the raison d’être. This article examines the extent to which the existing common law modalities overlap with the measures promulgated under POCA and attempts to identify those scenarios in which it would be more advantageous to utilise either the former, the latter or potentially both. It is submitted that if the extent of the overlap is so great that the common law modalities and the measures under POCA are indistinguishable, then supplementary or replacement legislation should be considered.

The social justice implications of criminalisation of HIV transmission

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

The social justice implications of criminalisation of HIV transmission

Author Matthew Robinson

ISSN: 1996-2118
Affiliations: PhD (Florida State), Professor, Department of Government and Justice Studies, Appalachian State University, and Visiting Professor, University of Zululand
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 302 – 319

Abstract

In this paper, the author attempts to provide some answers about the ‘right thing’ to do in cases where a person has wilfully or negligently exposed another person to HIV or does not tell a partner about their HIV status prior to engaging in sexual relations. To do this, the author introduces and summarises four main theories of justice and demonstrates that each is found within the Constitution of the Republic of South Africa, making them highly relevant for the practice of law in the country. The analysis reveals that in cases where there is legal culpability in the transmission of HIV, all four theories of justice and key principles of the Constitution are violated, suggesting criminalisation would be appropriate in those cases. However, the paper also illustrates that criminalising HIV transmission would likely lead to outcomes that would also violate those same conceptions of justice as well as other values important to South Africans, such as compassion and effective public health. The paper shows that arguments rooted in justice theory and the Constitution of the Republic of South Africa could be made both for and against the criminalisation of HIV transmission.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (1)

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (1)

Author Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 320 – 347

Abstract

The investigation of the quantum of damages which the courts have awarded as compensation for the injuries arising from unlawful arrest and detention by police officers and other law enforcement agents of the State is the major concern of this series of articles. When viewed from the perspective of the courts, the issue of quantification of damages is definitely a burdensome exercise; and to the victim, it is shrouded with uncertainty. It is not easily ascertainable whether this is the reason why, in spite of there being an avalanche of case law, yet there appear to be far less academic deliberations or debate in this volatile aspect of the law of government liability. Certainly, the assessment of damages is one area of adjudication where the trial judge has discretion to make a value judgment and an obligation to make an award that is fair, just and appropriate having regard to the circumstances of the case. It is clear, however, that courts do not pretend to be in a position to repair, except to the extent that money can do so, the types of physical, emotional and psychological damages caused in the process of arrest and detention. Otherwise, how could a trial judge possibly remedy the tricky issues of personal liberty deprivations; the physical injuries; the humiliation, tarnished reputation, and the trauma that afflict the plaintiff as a result of the wrongful arrest and detention; or, the economic damage – loss of income from employment or business; medical expenses incurred or to be incurred in the future? These problems are accordingly scrutinised in this series, including the factors the courts take into account in making the awards; the actual amounts awarded; and the reasons for making the awards. In carrying out this onerous task, the trial courts are guided by the principles outlined by the appellate courts. The enormous amount of materials available in these three Southern African jurisdictions investigated herein, inform the adoption of a three-part serialisation.

Eyewitness identification of multiple perpetrators

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Eyewitness identification of multiple perpetrators

Authors Alicia Nortje, Colin G Tredoux, & Annelies Vredeveldt

ISSN: 1996-2118
Affiliations: PhD (Psychology) (UCT), Postdoctoral Research Fellow, Department of Psychology, University of Cape Town; PhD (Psychology) (UCT), Professor in the Department of Psychology, University of Cape Town; PhD (Psychology) (York), Department of Criminal Law and Criminology, Vrije Universiteit Amsterdam
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 348 – 381

Abstract

To date, research and South African case law has largely ignored the memory burden experienced by witnesses to multiple-perpetrator crimes and failed to address the challenges that arise when administering identification parades for such crimes. Empirical research suggests that eyewitnesses to multiple-perpetrator crimes achieve low identification accuracy, which worsens with the addition of each perpetrator to be identified. Witnesses to multiple-perpetrator crimes also experience a unique memory task of matching criminal actions to perpetrators. Preliminary empirical evidence suggests witnesses perform poorly at this task. Although some international research documents the difficulties that officers experience when conducting identification parades, there is little evidence of how South African officers administer parades in the field. This article presents empirical evidence from a sample of detectives in the Western Cape showing that in-field administration of parades for multiple-perpetrator crimes are not uniform, and officers risk conducting parades that would not be considered ‘fair’. The article concludes that the current South African guidelines may profitably be revised, so that difficulties associated with administering parades for multiple-perpetrator crimes are alleviated.

Language as a facilitator of the right to a fair trial in Kenya

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Language as a facilitator of the right to a fair trial in Kenya

Author Catherine S. Namakula

ISSN: 1996-2118
Affiliations: LLB (Makerere) PGDLP (LDC) LLM (Nottingham) PhD (Wits), Professor of Human Rights and Criminal Justice, Global Humanistic University, Curaçao & Senior Lecturer, Faculty of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 382 – 401

Abstract

The language in which a criminal case is conducted may significantly influence the verdict, and impact on the right to a fair trial if the accused does not properly understand the language of the court. The courts of Kenya, therefore, tolerate no compromise of the constitutional imperative that the person on trial must understand the language used in the proceedings. This paper examines the language-based requirements of fair trial as revealed by the jurisprudence on core trial processes such as judicial interpreting, plea taking, and confessions. A competent court safeguards a fair trial by ensuring that trial participants express themselves in the language(s) of their ability. This may require the provision of effective interpretative assistance. There is need to professionalise judicial interpreting and to foster the scientific and legal development of local languages in Kenya.

Immunity before the International Criminal Court: Has the Appeals Chamber decision in the Jordan appeal brought finality?

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Immunity before the International Criminal Court: Has the Appeals Chamber decision in the Jordan appeal brought finality?

Author Linda Mushoriwa

ISSN: 1996-2118
Affiliations: LLB (University of Zimbabwe) LLM (UNISA) PhD (UKZN). Post-doctoral research fellow (South African Research Chair in International Law, Faculty of Law, University of Johannesburg)
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 402 – 424

Abstract

On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC or ‘the Court’) rendered a decision in an appeal lodged by Jordan in March 2018; against a decision of non-cooperation rendered by the Court’s Pre-Trial Chamber (PTC) II in December 2017. PTC II had ruled that Jordan breached its obligation to cooperate with the court by failing to arrest and surrender the then Sudanese President Omar Al-Bashir pursuant to two warrants of arrests issued against him by the court in 2009 and 2010. Al-Bashir had visited Jordan in March 2017 to attend an Arab League meeting. The indictment of Al-Bashir by the court whilst he was still the head of state of Sudan ignited debate regarding his immunity from arrest and surrender by states in cooperation with the court, as Sudan is not a state party to the Rome Statute of the International Criminal Court (Rome Statute). This article examines the Appeals Chamber’s decision on the customary international law status of head-of-state immunity, the relationship between art 27(2) and art 98(1) of the Rome Statute and the effect of Security Council Resolution 1593 (2005); and assesses whether or not the decision has helped to clarify the contentious issue of head-of-state immunity before the court.