Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation

Authors: Leandré C Geoffrey and Marelize I Schoeman

ISSN: 1996-2118
Affiliations: BA BA(Hons) MA PhD BA(Hons) (Unisa), Senior Lecturer, School of Criminal Justice and Criminology, University of Limpopo; BA MA DPhil (Pretoria), Professor, Department of Criminology and Security Sciences, School of Criminal Justice, College of Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 58 – 82
https://doi.org/10.47348/SACJ/v36/i1a4

Abstract

The significant prevalence of psychiatric disorders in child offenders requires the justice system to provide direction in the treatment of these children. This submission considers whether the Children’s Act 38 of 2005, the Child Justice Act 78 of 2008, the Criminal Procedure Act 51 of 1977 and the child justice procedures uphold the best interests of child offenders with a mental illness or defects by juxtaposing South African legislation and child justice procedures with the best interests standard principle. The authors conclude that current legislation and legal procedures are not in the best interests of children with psychiatric disorders. Children with mental illness or defects are not adequately protected and they cannot participate equally in justice delivery processes. Furthermore, adequate consideration is not given to the affect of mental disorders or defects in decisions during child justice proceedings. It is recommended that the Child Justice Act be amended to include a section in which the rights of children with psychiatric disorders are protected and measures be put in place to address their psychosocial and developmental needs. Children with psychiatric disorders who are in conflict with the law should be classified as children in need of care and protection to break the causal nexus between psychiatric disorders and delinquency.

The adequacy of rape criminalisation in modern South Africa: A comparative study

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

The adequacy of rape criminalisation in modern South Africa: A comparative study

Authors: Rinda Botha and Janine Peens

ISSN: 1996-2118
Affiliations: BIuris (UFS) LLB (UFS) LLM (UFS) LLD (UFS), Senior Lecturer, Faculty of Law, University of the Free State; LLB (UFS) LLM (UFS)
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 83 – 122
https://doi.org/10.47348/SACJ/v36/i1a5

Abstract

In the past fifteen years, South Africa has embarked on substantial reform of its sexual offences laws. In many respects, these reforms are like those in other jurisdictions, addressing issues of definition and sentencing. Yet the country’s rape statistics remain startlingly high, and rape sentencing remains inconsistent. To assess the adequacy of rape criminalisation in South Africa, this article starts off with an overview of relevant local case law. It becomes clear that, although the state is not always consistent in prosecuting the accused of all variants of sexual penetration, prosecution in terms of the current, broader definition of rape is common, as is the imposition of minimum sentences for these convictions. Also, courts remain inconsistent in interpreting which factors should count as substantial and compelling circumstances to justify a lesser sentence. A comparative look at the legal position in England and Canada firstly confirms that rape remains a global concern, and that South Africa is not the only jurisdiction that has grappled with defining and sentencing the offence. Yet South Africa could stand to learn a few lessons from these two countries to further improve its law on rape. Recommendations include adopting a more succinct definition of rape, introducing more conduct-specific charges and sentencing (similar to England’s ‘assault by penetration’), and providing a well-defined list of substantial and compelling circumstances to establish greater legal clarity in the sentencing of rape offenders.