Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

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

Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

Author Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of
Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 425 – 445

Abstract

Section 4(1)(a) of the Refugees Act disqualifies from refugee status any person who is alleged to have ‘committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes’. The Implementation of the Geneva Conventions Act and the Implementation of the Rome Statute of the International Criminal Court Act provide that South African courts have jurisdiction over war crimes committed abroad. The Implementation of the Rome Statute of the International Criminal Court Act is only applicable to crimes that were committed after July 2002. However, the Implementation of the Geneva Conventions Act is silent on whether South African courts have jurisdiction over war crimes committed by non-South Africans in noninternational armed conflicts outside South Africa. As a result, if a person whose application for refugee status has been declined under s 4(1)(a) on the ground that there is reason to believe that he committed a war crime in a non-international armed conflict cannot be extradited for prosecution, South African courts will not have jurisdiction over him. It is argued that there is a need to amend the Implementation of the Geneva Conventions Act to address this loophole. In order to support this argument, the article addresses the following issues: a discussion of s 4(1)(a) of the Refugees Act; the admissibility of foreign convictions in refugee determination cases; prosecuting a person who has committed war crimes outside South Africa; and excluding a person from being recognised as a refugee on the basis of an offence of a non-political nature and the principle of non-refoulement.

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? (Part 1)

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

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? (Part 1)

Authors Samantha Goosen and Nicci Whitear-Nel

ISSN: 1996-2118
Affiliations: LLB LLM (UPE) PhD (UKZN), Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg; BA LLB (UN) LLM (UKZN), Senior Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 446 – 468

Abstract

Spousal testimonial privilege and marital communications privilege are distinct concepts, but both are underpinned by the same policy rationale: The desire to protect the sanctity of the marriage relationship, encourage communication between spouses, and to prevent a spouse from being faced with the moral dilemma of either telling the truth and risking the relationship or committing perjury to avoid incriminating the other spouse. Collectively, spousal testimonial privilege and marital communications privilege are referred to as the marital privileges in this article. The law indicates a clear policy choice in favour of protecting the marriage relationship as opposed to the public interest in ensuring that the maximum relevant evidence is placed before the court, by virtue of the existence of the marital privileges. In part one of this two-part article, the authors discuss the marital privileges and the rationales underpinning them. Then the article considers the problems with the marital privileges and whether the law needs reform. The authors discuss whether the marital privileges should be extended to include cohabitant life partners. It is argued that the law on marital privileges is arbitrary and incoherent and does not adequately reflect or take into account the types of relationships that exist in multicultural South African society. In part two, the authors discuss the position as regards the marital privileges in a constitutionally comparable democracy – that of Canada. Also considered is the position adopted by the European Court of Human Rights in respect of the marital communications privilege in the Netherlands.