Private prosecution of environmental offences under the South African National Environmental Management Act: Prospects and challenges

by | Oct 13, 2019 | SACJ, SACJ V29 I1 2016

Private prosecution of environmental offences under the South African National Environmental Management Act: Prospects and challenges

Authors Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: Associate Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 29 Issue 1, p. 24 – 43

Abstract

Recent reports from the South African Department of Environmental Affairs show that South Africa has seen an increase in the number of environmental offences in the last two years. The 2014/2015 annual report of the National Prosecuting Authority shows that ‘the number of environmental crimes finalised with a verdict increased from the previous year by 60.6% — from 165 to 265 cases’. All these offences were prosecuted by public prosecutors. Section 33 of the South African National Environmental Management Act 107 of 1998 (NEMA) empowers private individuals and juristic persons to institute and conduct private prosecutions for offences under the Act. There is no reported case in which section 33 has ever been invoked. The purposes of this article are to analyse section 33 of NEMA and suggest ways by which it could be interpreted or amended to strengthen the private prosecution regime. In doing so, the author deals with the following issues: locus standi to bring a private prosecution under NEMA; whether private prosecutions under section 33(1) of the NEMA are really private prosecutions; reimbursing the private prosecutor for the costs of a successful prosecution; costs in the event of an unsuccessful private prosecution; and instances where a public prosecutor may take over a private prosecution.

South Africa’s rape shield: Does section 227 of the Criminal Procedure Act affect an accused’s fair trial rights?

by | Oct 13, 2019 | SACJ, SACJ V29 I1 2016

South Africa’s rape shield: Does section 227 of the Criminal Procedure Act affect an accused’s fair trial rights?

Authors Jameelah Omar

ISSN: 1996-2118
Affiliations: Lecturer, Criminal Justice, Department of Public Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 29 Issue 1, p. 1 – 23

Abstract

Rape shield laws are a critical aspect of the protection of rape complainants during the criminal justice process. The rationale of rape shield laws is to protect complainants from having their sexual reputation or behaviour used to reduce their credibility, particularly as the inferences drawn are based on historical prejudices against women, and do not actually assist with the fact-finding role of the court. This article will argue that Section 227 of the Criminal Procedure Act 51 of 1977 aims to finding the correct balance between the protection of the complainant’s rights to privacy and dignity, while upholding an accused’s right to a fair trial, including the right to adduce and challenge evidence. However, the sparse case law related to section 227 raises questions about its successful implementation by courts.