Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

by | Sep 19, 2021 | SLR, SLR V32 I2

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

Author: Delano Cole van der Linde

ISSN: 1996-2193
Affiliations: LLB LLM LLD (Stell), Senior Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 288 – 305
https://doi.org/10.47348/SLR/2021/i2a6

Abstract

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a person’s status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a person’s unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a person’s membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted person’s gang-related activities.

A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis

by | Sep 19, 2021 | SLR, SLR V32 I2

A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis

Authors: Williams C Iheme and Sanford U Mba

ISSN: 1996-2193
Affiliations: LLB LLM SJD, Associate Professor of Law, Jindal Global Law School; Visiting Professor, Strathmore Law School; LLB LLM SJD, Senior Associate in the law firm Dentons ACAS-Law
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 306 – 329
https://doi.org/10.47348/SLR/2021/i2a7

Abstract

The COVID-19 pandemic has no doubt impacted all countries of the world. In its wake, it has left a trail of mortality and an economic crisis of immense proportions. As the virus continues to mutate and containment measures are introduced, the economic challenges posed by the pandemic continue to be felt by households and businesses. By arguing that times of economic crises provide an auspicious occasion for countries to rework their insolvency frameworks and their debt restructuring regimes, this article interrogates the existing debt restructuring regimes in both Kenya and Nigeria, as provided for in the Kenyan Insolvency Act 2015 and the Nigerian Companies and Allied Matters Act 2020, and considers the role of their statutes and institutions created to facilitate debt restructuring. The article further highlights key defects and proposes important and critical changes to these legal frameworks to ensure that they are sufficiently responsive to the pandemic-triggered crisis.

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

by | Sep 19, 2021 | SLR, SLR V32 I2

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

Author: Riaan Eksteen

ISSN: 1996-2193
Affiliations: BA BA (Hon) MA PhD; Senior Research Associate at the Department of Politics and International Relations, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 330 – 361
https://doi.org/10.47348/SLR/2021/i2a8

Abstract

The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.

A Historical Overview of the Mental Health Expert in England Until the Nineteenth Century

by | Sep 19, 2021 | FUND, FUND V27I1

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

by | Sep 19, 2021 | FUND, FUND V27I1

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.