Inclusive pre-sentencing reports for children who conflict with the law: Applying and executing section 71 of the Child Justice Act

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Inclusive pre-sentencing reports for children who conflict with the law: Applying and executing section 71 of the Child Justice Act

Authors: Maryna Human, Leandré C Geoffrey and Theophilus Lazarus

ISSN: 1996-2118
Affiliations: PhD; School of Criminal Justice, University of South Africa; BA(Hons) MA PhD (Unisa); Senior Lecturer, Department of Criminology and Criminal Justice, University of Limpopo; PhD MNAN (USA); Adjunct Professor, Department of Psychology, Emory University, Registered Neuropsychologist (Health Professions Council of South Africa)
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 1 – 20
https://doi.org/10.47348/SACJ/v37/i1a1

Abstract

Despite the progressive nature of the Child Justice Act (CJA) to uphold the best interest principle of all children who come into conflict with the law, s 71(1) and (2) of the CJA that outlines the pre-sentencing evaluation reports required for sentencing, fail to meet and uphold this objective. This is of particular importance given the multi-complex and multi-faceted advancements in scientific findings regarding the development of criminal behaviour in children. This paper reviewed and concluded the following key aspects pertinent to the execution of pre-sentencing reports: (1) practitioners are not provided with clear guidelines specifying key factors that need emphasis in the pre-sentence reports; (2) practitioners are often inexperienced in child development (brain and psychological) processes and lack the requisite knowledge and skills in crime causation to compile the reports; and (3) the best interest principle is hampered by a severe staffing problem, heavy workloads, and tight timeframes governing the compilation and submission of reports.
This submission was primarily influenced by the findings from research that explored and subsequently developed an action plan for criminologists with a view toward specialisation in child justice. A literature review and analysis of pre-existing findings from the aforesaid research, coupled with reviews of academic literature from various academic scientific sources formed the basis of the arguments presented in this submission.

Barcoding banknotes: Moving towards a system addressing cash anonymity in money laundering and terrorist financing operations

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Barcoding banknotes: Moving towards a system addressing cash anonymity in money laundering and terrorist financing operations

Author: Ruann Jansen van Vuren

ISSN: 1996-2118
Affiliations: Bcom (Law) LLB (Stell), Paralegal to Advocate LJ Van Tonder SC
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 21 – 47
https://doi.org/10.47348/SACJ/v37/i1a2

Abstract

The anonymity in cash transactions present a significant hurdle in financial crime prevention. The central issue in addressing illicit cashflows lies in the difficulty to distinguish between licit and illicit cashflows amongst countless daily cash transactions. Addressing the issue poses the challenge of identifying a balance between an extreme of total surveillance, which can impinge on freedoms and disrupt cash-dependant economies, and total inaction, which allows illicit flows to persist. Between these two extremes lie various middle paths, some more effective than others in striking the required balance. Through an examination of the historical landscape of money laundering, the evolution of countermeasures, and the exploitation of gaps by criminals, a technologically advanced solution is proposed. In this regard, the implementation of traceable barcodes on banknotes aims to enhance transparency and traceability in financial dealings. A barcoded system is an innovative strategy to tackle money laundering and terrorist financing. This article assesses the viability, potential impacts and challenges of this system in policy formulation and economic frameworks, contributing to the discourse on enhancing anti-money laundering and counter-terrorist financing measures.

Enhancing the criminal justice response to human trafficking in South Africa: Legislation and case law in the spotlight

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Enhancing the criminal justice response to human trafficking in South Africa: Legislation and case law in the spotlight

Author: Beatri Kruger

ISSN: 1996-2118
Affiliations: BA, LLB, LLM, LLD, Emeritus Professor and Research Fellow, Free State Centre for Human Rights, Faculty of Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 48 – 83
https://doi.org/10.47348/SACJ/v37/i1a3

Abstract

Human traffickers continually develop new tactics to trick and trap their victims, making human trafficking a complex and evolving crime that demands a robust criminal justice response. This response must be consistently refined to combat this pervasive crime effectively. In South Africa, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (Trafficking Act) came into force in 2015 to address the multifaceted crime. Now, after eight years, this article delves into the status of the counter-trafficking response, focusing on the efficacy of the anti-trafficking legislation and its implementation by the courts. It was found that, first, the Trafficking Act, as previously confirmed, complies with international minimum standards, and encompasses all forms of trafficking. Secondly, through the implementation and interpretation of this legislation, the courts have established jurisprudence on human trafficking, making a significant contribution to the criminal justice response. By reviewing case law spanning the period 2009 to 2023, this article aims to contribute novel insights to the existing body of knowledge, based on evidence tested in courts. Examining emerging case law, the article sheds light on various features of human trafficking within the criminal justice arena. It focuses specifically on the gravity and nature of human trafficking, penalties imposed by the courts, both domestic and cross-border trafficking, and new insights into various types of trafficking perpetrated within South Africa. Notably, court judgments increasingly offer binding and clarifying decisions. Case law has endorsed the only legally binding definition of human trafficking and provided interpretations of concepts in trafficking legislation. However, alongside the positive contributions of case law, the article also identifies legislative challenges. Consequently, recommendations are presented to enhance and fortify the criminal justice response to human trafficking in South Africa.

Policing in a failing state: An impossible mission

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Policing in a failing state: An impossible mission

Author: David Masiloane

ISSN: 1996-2118
Affiliations: DLitt et Phil (Unisa); Professor, Department of Police Practice, Unisa
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 84 – 102
https://doi.org/10.47348/SACJ/v37/i1a4

Abstract

The political interference and poor governance lead to a weak police service that fails to provide safety and security to communities. This exposes people to crime and criminality and makes them lose trust in the police, compelling them to take the law into their own hands. A weak state paralyses the police, and a paralysed police service reflect a weak state. This study analysed books, articles, and print and electronic media to determine whether South Africa exhibits some of the characteristics of a failing state, and what impact this has on the police and policing in the country. The failure of the state at any level – such as the inability of the National Student Financial Aid Scheme to speedily disburse financial aid to students, municipalities’ incapacity to render services to communities, and the police’s powerlessness in dealing with high crime rates – leads to public discontent, anger and frustration, which tend to be expressed through violent protests. The policing of these protests is often criticised as being either indecisive or brutal, thus presenting a continuous challenge to police leadership on how to strike a sensitive balance between indecisiveness and brutality.

The Prosecutor v Dominic Ongwen case before the International Criminal Court: A Twail-er’s perspective

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

The Prosecutor v Dominic Ongwen case before the International Criminal Court: A Twail-er’s perspective

Author: Linda Mushoriwa

ISSN: 1996-2118
Affiliations: LLB (University of Zimbabwe) LLM (Unisa) PhD (University of KwaZulu-Natal); Researcher, African Centre for Transnational Criminal Justice, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 103 – 126
https://doi.org/10.47348/SACJ/v37/i1a5

Abstract

This paper explores whether the International Criminal Court (ICC or ‘the court’) has lived up to the expectation of being an effective and universal mechanism of international criminal justice and accountability, by using the judgment of the Prosecutor v Dominic Ongwen as a case study. Ongwen was convicted by the court’s Trial Chamber (TC) IX in February 2021, on 61 charges of war crimes and crimes against humanity perpetrated in Northern Uganda between July 2002 and December 2005, and sentenced to 25 years’ imprisonment. The Appeals Chamber (AC) confirmed both the conviction and sentence in a judgment rendered on 15 December 2022. It will be argued from a Third World approaches to international law (TWAIL) perspective, that the court missed an opportunity to improve its institutional legitimacy, considering the legitimacy deficit stemming from claims by African states that the ICC is biased against Africa. The paper will also argue that the court missed an opportunity to improve its own decision-making by expanding its source material to include sources from the Global South.