A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

Authors: Julia Sloth-Nielsen & Brigitte Clark

ISSN: 1996-2177
Affiliations: Professor of Law, University of Huddersfield; Emeritus Professor, University of the Western Cape; Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University
Source: South African Law Journal, Volume 141 Issue 2, p. 391-414
https://doi.org/10.47348/SALJ/v141/i2a6

Abstract

This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their jurisdiction. The article examines whether this upper guardianship role has become superfluous and outdated in light of the constitutional requirement that courts consider the paramountcy of the child’s best interests as an independent right. The High Court’s upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children’s Act. Furthermore, the superior courts, as courts of record, enable the development of a system of precedent-based child law, providing judicial reasons for all decisions and justifying the retention of the common-law inherent jurisdiction of the High Court as the upper guardian of children. We conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional best-interests standard notwithstanding.

Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

by | Apr 3, 2024 | SACJ, SACJ V36 I3 2023

Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

Author: Kelebogile Boleu

ISSN: 1996-2118
Affiliations: MA (Criminology) (UFS); Junior Lecturer, Faculty of the Humanities, University of the Free State
Source: South African Journal of Criminal Justice, Volume 36 Issue 3, p. 363 – 378
https://doi.org/10.47348/SACJ/v36/i3a1

Abstract

The role of criminologists in South Africa and many other countries has been evolving and expanding over the years. Criminologists are increasingly involved in various phases of the judicial process, including the pre-trial, trial, and post-trial stages.1 As a scientific discipline, criminology involves understanding the root causes of crime, its impact on society, and how to prevent and respond to criminal behaviour. However, it stands to reason that in making an informed and balanced contribution to a case in a court of law, the criminologist must familiarise themself with all aspects relevant to the case.2 The current study focused on the perception of presiding officers about criminologists as expert witnesses in their courts during sentencing. This study explored whether presiding officers valued criminologists knowing, understanding and applying sentencing objectives in writing their reports. A qualitative inquiry was conducted to explore whether it is important for a criminologist to understand sentencing objectives in order to provide an overall and thorough report to the court. Semi-structured interviews were conducted with presiding officers from the regional and high courts in Bloemfontein. The findings suggest that presiding officers prefer to appoint a criminologist who understands and has broad experience of all sentencing objectives in South Africa to assist them in deciding on appropriate sentences.