Reckless indifference or legal intention? A doctrinal and jurisprudential analysis of S v Siyaya and the evolution of dolus eventualis in South African criminal law

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Reckless indifference or legal intention? A doctrinal and jurisprudential analysis of S v Siyaya and the evolution of dolus eventualis in South African criminal law

Author: Suhayfa Bhamjee

ISSN: 1996-2118
Affiliations: LLB LLM PhD (UKZN); Senior Lecturer, School of Law, UKZN (Pietermaritzburg)
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 341-360
https://doi.org/10.47348/SACJ/v38/i3a1

Abstract

The 2024 high court judgment in S v Siyaya presents a significant precedent in the realm of road traffic fatalities in South African criminal law. This article provides a comprehensive analysis of the judgment, focusing on the evidentiary findings, the application of dolus eventualis, and the implications for criminal liability in transport-related deaths. Dolus eventualis was central to the court’s reasoning, and represents a departure from the long-standing SCA decision in S v Humphreys. The court had to determine whether Siyaya foresaw the possibility of a fatal outcome and reconciled himself to that risk. The judgment delves into the nuances of dolus eventualis, distinguishing it from mere negligence or recklessness. Underscoring the need for a thorough examination of the accused’s state of mind and the foreseeability of harm, the case sets a precedent for holding individuals criminally liable for transport-related deaths when their actions exhibit a clear intent to disregard the safety of others. This article undertakes a doctrinal and jurisprudential analysis of the judgment, with a focus on the court’s application of dolus eventualis and its departure from the reasoning in S v Humphreys. The article also explores the theoretical and practical implications of the judgment, engaging with case law and scholarly commentary, and argues that the court in Siyaya correctly applied inferential reasoning to establish legal intention. The analysis is situated within the broader discourse on the distinction between dolus eventualis and luxuria, and the evolving standards of criminal liability in cases of extreme recklessness on South African roads. Siyaya reinforces the principle that individuals who consciously disregard the safety of others can be held criminally liable for their actions. This article provides an analysis of the legal reasoning, evidentiary findings, and implications of the judgment, contributing to the ongoing discourse on criminal liability and transport safety.

Prosecuting human trafficking at the international level: A case for Rome Statute reform

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Prosecuting human trafficking at the international level: A case for Rome Statute reform

Author: Meg James

ISSN: 1996-2118
Affiliations: LLB LLM (cum laude) (Stell); Assistant to the Ambassador, Royal Danish Embassy, The Netherlands
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 361-379
https://doi.org/10.47348/SACJ/v38/i3a2

Abstract

Human trafficking remains one of the most pervasive forms of modern exploitation, affecting millions globally, yet it lacks explicit recognition as a distinct international crime under the Rome Statute. Current legal frameworks, including the Rome Statute of the International Criminal Court, partially address trafficking through proximate categories such as enslavement or sexual slavery. However, these classifications often require proof of ownership-like control, fail to capture the full spectrum of trafficking practices, and leave significant groups of victims without recourse to justice. This article examines the definitional, historical, and jurisprudential distinctions between trafficking and slavery, evaluates the Rome Statute’s existing categories of crimes against humanity, and highlights the limitations of relying on legal proxies. Drawing on the Palermo Protocol and international case law, the article argues for the inclusion of trafficking as a standalone crime under the Rome Statute. It proposes specific amendments to article 7 and discusses the procedural and political challenges inherent in such reform. Recognising trafficking explicitly would enhance the International Criminal Court’s capacity to prosecute human trafficking, provide coherent legal protections for victims, and reinforce the international community’s commitment to combating modern slavery in all its forms.

Comparative view on the use of facial recognition technology by law enforcement in South Africa

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Comparative view on the use of facial recognition technology by law enforcement in South Africa

Author: Jacqui Meyer

ISSN: 1996-2118
Affiliations: LLB (UP) LLM (Unisa); Head of Law, Varsity College, Independent Institute of Education, Pretoria
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 380-424
https://doi.org/10.47348/SACJ/v38/i3a3

Abstract

The growing use of facial recognition technology (FRT) by law enforcement in South Africa presents urgent legal, ethical, and governance challenges. While FRT is often promoted as a tool to enhance safety and crime prevention, its deployment reveals deep tensions between technological efficiency and constitutional rights to privacy, dignity, and equality. This article examines the operation of contemporary FRT systems – rooted in machine learning and high-dimensional data analysis – highlighting their opacity and potential error and bias. It further explores the phenomenon of function creep, where surveillance technologies expand beyond their original intent, often without public awareness or regulatory oversight. Drawing on South African case examples, including Vumacam’s CCTV network and biometric data collection under the Independent Communications Authority of South Africa’s (ICASA) proposals, the article situates these developments within comparative frameworks such as the European Union’s Artificial Intelligence Act. It argues that South Africa urgently requires a comprehensive, human rights-based regulatory framework to prescribe the specific circumstances and safeguards for the law enforcement use of FRT. Such a framework would ensure proportionality, transparency, and accountability, thereby preventing technological advancements from outpacing legal protections.

Fitness-to-stand trial and disability discrimination: An international criminal justice appraisal in the Félicien Kabuga case

by | Mar 1, 2026 | SACJ, SACJ V38 I3 2025

ARTICLE

Fitness-to-stand trial and disability discrimination: An international criminal justice appraisal in the Félicien Kabuga case

Author: Simeon P Sungi

ISSN: 1996-2118
Affiliations: LLB(Hons) LLM MA PhD; Associate Professor of Criminal Justice, Department of Sociology and Criminal Justice, United States International University-Africa, Kenya
Source: South African Journal of Criminal Justice, Volume 38 Issue 3, p. 425-449
https://doi.org/10.47348/SACJ/v38/i3a4

Abstract

The right to a fair trial is a fundamental element of international criminal justice, guaranteeing that every accused person has the mental and physical ability to effectively participate in their defence. When an accused’s fitness to stand trial is affected by age or disability, complex legal and ethical issues emerge between the pursuit of justice and protecting individual rights. This article critically explores these issues through the case of Félicien Kabuga, the alleged financier of the 1994 Rwandan genocide, whose advanced age and cognitive decline have sparked debates about his fitness to stand trial before the International Residual Mechanism for Criminal Tribunals. The analysis questions whether continuing proceedings against Kabuga aligns with the right to a fair trial under international law and the principles of non-discrimination outlined in the Convention on the Rights of Persons with Disabilities. Using jurisprudence from international and regional human rights bodies, the article assesses how international criminal tribunals have interpreted fitness to stand trial and how disability considerations have been incorporated into procedural safeguards. It argues that current international criminal law frameworks are insufficiently addressing the link between disability rights and criminal accountability, potentially leading to indirect discrimination against accused persons with disabilities. The article contributes to the debate by proposing a normative and policy-based framework for integrating disability-sensitive standards into international criminal procedures. It advances the debate on procedural fairness by connecting the equality obligations of the Convention on the Rights of Persons with Disabilities’s with the operational practices of international tribunals. In doing so, it offers new insights into how global justice institutions can balance accountability for atrocity crimes with human rights norms on disability, inclusion, and dignity in the justice process.

The Right to Self-Determination: A Consideration of Agitations for Selfgovernance by Ethnic Nationalities in Nigeria

by | Feb 21, 2026 | FUND, FUND V31I2

The Right to Self-Determination: A Consideration of Agitations for Selfgovernance by Ethnic Nationalities in Nigeria

Authors Marcus Ayodeji Araromi and Okunlade Isaac Adejumo

ISSN: 2411-7870
Affiliations: LLB LLM PhD (University of Ibadan). Lecturer, Department of Public Law, University of Ibadan, Nigeria; LLB LLM (Obafemi Awolowo University, Ile-Ife). Lecturer, Department of Public Law, University of Ibadan, Nigeria
Source: Fundamina, Volume 31 Issue 2, p. 1-56
https://doi.org/10.47348/FUND/v31/i2a1

Abstract

Self-determination is a political concept that, in some contexts, has found expression in the international politics of decolonising former colonial territories and carving a new state out of an existing one. This concept, furthermore, has been viewed as a political right that needs to be explored by various disgruntled ethnic groups to exit their mother-nations. The focus of this contribution is on interrogating the agitations of certain ethnic groups in Nigeria to secede from the country and to determine whether their agitations are justified. The authors consider some fundamental bases for these agitations and review the international stance on self-determination. The contribution adopts a historical, legal and analytical approach in its exploration of the concept of self-determination. Article 1 of the United Nations Charter asserts respect for the principle of equal rights and self-determination of peoples. In addition, Article 1 of the International Covenant on Civil and Political Rights, and Article 1 of the International Covenant on Economic, Social and Cultural Rights both affirm that “[a]ll peoples have the right of self-determination”. The idea of federating with other units is a matter of choice and cannot take place by force. However, choice is a factor that was conspicuously absent in the coagulation of different ethnic nationalities into one federal state in Nigeria. This contribution argues that the idea of “legitimate choice” in determining one’s political affiliation is the only veritable basis for merging two or more ethnic groups together as a sovereign nation.

Revisiting the Infamous Pernkopf Anatomy Atlas – Historical Lessons for Medical Law and Ethics: Could Recent Events be Invoked to Justify the Selective use and Application of the Atlas in Medical Practice?

by | Feb 21, 2026 | FUND, FUND V31I2

Revisiting the Infamous Pernkopf Anatomy Atlas – Historical Lessons for Medical Law and Ethics: Could Recent Events be Invoked to Justify the Selective use and Application of the Atlas in Medical Practice?

Authors Pieter Carstens and Chrislie Boers

ISSN: 2411-7870
Affiliations: At the time of authoring: Emeritus Professor of Criminal and Medical Law, Department of Public Law, University of Pretoria; Associate member of the Pretoria Bar; Lecturer, Department, Public Law, Akademia Private Higher Education Institution
Source: Fundamina, Volume 31 Issue 2, p. 57-103
https://doi.org/10.47348/FUND/v31/i2a2

Abstract

The Pernkopf Topographical Anatomy of Man is widely regarded as one of the most anatomically precise atlases ever produced, yet it remains indelibly tainted by its origins in Nazi Germany and its reliance on the bodies of executed victims of the Third Reich. This article revisits the historical, ethical and legal context surrounding the compilation and continued existence of the Pernkopf Anatomy Atlas. It situates the Atlas within a broader history of medical experimentation, and the procurement of human remains, while distinguishing premodern practices from the systematic, state-sanctioned atrocities of Nazi medical science. Against this backdrop, the contribution critically examines the complicity of the medical and legal professions in legitimising gross violations of human dignity and bodily integrity. The article further engages with the longstanding international debate concerning the continued use, rejection or conditional acceptance of the Atlas in medical education and practice. Attention is paid to the ethical significance of the Nazi insignia embedded in the original illustrations and to the relationship between medical law and medical ethics when confronted with research derived from unlawful and unethical conduct. Considering recent developments and renewed scholarly engagement with the Atlas, the article considers whether a more nuanced and context-sensitive approach—short of outright prohibition—can be justified. It ultimately argues that any engagement with the Pernkopf Atlas must remain firmly grounded in historical accountability, ethical transparency and respect for the dignity of the victims.