Raising the Yellow Flag: Legal Regulation to Contain the Spread of Smallpox and Other Contagious Diseases in the Zuid-Afrikaansche Republiek

by | Apr 15, 2022 | FUND, FUND V27I2

Raising the Yellow Flag: Legal Regulation to Contain the Spread of Smallpox and Other Contagious Diseases in the Zuid-Afrikaansche Republiek

Author Liezl Wildenboer

ISSN: 2411-7870
Affiliations: Senior lecturer, Department of Jurisprudence, College of Law, University of South Africa
Source: Fundamina, Volume 27 Issue 2, p. 87-124
https://doi.org/10.47348/FUND/v27/i2a4

Abstract

Although the Cape had experienced frequent outbreaks of smallpox and other epidemics since the early eighteenth century, the first smallpox epidemic only started in the Zuid-Afrikaansche Republiek (ZAR) much later, in the 1890s. This contribution takes a closer look, first, at the regulation of the medical profession in the ZAR, and, secondly, at the government’s attempts to prevent the spread of the disease with the promulgation of the Contagious Diseases Law 12 of 1895. That law also attempted to prevent the spread of other diseases, such as syphilis and leprosy, although the latter would eventually be regulated in terms of the Leprosy Law 15 of 1897.

Independent judicial research of forensic evidence in criminal trials – A South African perspective

by | Apr 15, 2022 | SACJ, SACJ V34 I3 2021

Independent judicial research of forensic evidence in criminal trials – A South African perspective

Author: Jo-Marí Visser

ISSN: 1996-2118
Affiliations: BSc BMedSc Hon (UFS) MSc Med Crim (UP) LLB, LLD (UFS), Senior lecturer, Department of Public Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 34 Issue 3, p. 415 – 441
https://doi.org/10.47348/SACJ/v34/i3a1

Abstract

As forensic scientific evidence becomes not only more advanced but progressively more important in criminal trials, so too does the pressure on presiding officers to accurately assess such evidence, not only for admissibility but also reliability. In the United States of America (USA), judges are mandated to act as gatekeepers of expert opinion and as such are tempted to engage in independent judicial research of science and medicine to accurately fulfil this gatekeeping duty. This temptation is intensified by the information explosion on the Internet and the vast array of available information, both legal and non-legal in nature. While courts are entitled to conduct legal research in deciding disputes, controversy and ambiguity exist on whether judicial research on facts should be allowed. In South Africa, the Constitutional Court in S v Van der Walt 2020 (2) SACR 371 (CC) focused on procedural fairness and held that independent judicial research violates accused persons’ right to challenge evidence in terms of s 35(3)(i) of the Constitution. But a blanket prohibition on this type of judicial research excludes many significant advantages that could potentially secure more accurate decisions. This article considers the legal positions on independent judicial research in the USA and South Africa, reviews the pros and cons of such research, and finds that a flexible approach might alleviate some dangers and exploit some advantages.

The Black Flame (part two): Snyman’s Criminal Law

by | Apr 15, 2022 | SACJ, SACJ V34 I3 2021

The Black Flame (part two): Snyman’s Criminal Law

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2118
Affiliations: LLB (Wits) LLM (UCT) PhD (Nottingham), Lecturer in Law, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 3, p. 442 – 460
https://doi.org/10.47348/SACJ/v34/i3a2

Abstract

This is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.

The right to bail pending trial in Uganda

by | Apr 15, 2022 | SACJ, SACJ V34 I3 2021

The right to bail pending trial in Uganda

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 34 Issue 3, p. 461 – 481
https://doi.org/10.47348/SACJ/v34/i3a3

Abstract

Article 23(6)(a) of the Constitution of Uganda (1995) states that an arrested person is ‘entitled’ to apply to court for bail (discretionary bail). Articles 23(b) and (c) require a court to release on bail a person who has been awaiting trial in custody for a specified number of days (mandatory bail). Jurisprudence of Ugandan courts on bail pending trial shows that courts have dealt with two main issues: the right to bail or to apply for bail; and the conditions for granting of discretionary bail pending trial. The Supreme Court has held that an accused has a right to apply for bail. In this article, the author argues that the drafting history of Article 23(6)(a) shows that an accused has a right to bail (as opposed to just apply for bail). The author also demonstrates how courts have been inconsistent in many cases when dealing with the conditions for granting of discretionary bail pending trial. It is argued further that since the Ugandan government is increasingly re-arresting opposition politicians who have been granted bail by the high court, Ugandan courts may explore the possibility of granting anticipatory bail. It is also argued that the drafting history of Articles 129(d) and 210 of the Constitution shows that courts martial are courts of judicature and subordinate to the high court which means, inter alia, that the high court has the power to release an accused on bail should the general court martial refuse to release him/her on bail.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (3)

by | Feb 20, 2022 | SACJ, SACJ V34 I2 2021

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (3)

Author: Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 169 – 190
https://doi.org/10.47348/SACJ/v34/i2a1

Abstract

Having concentrated in the last two parts on the South African jurisprudence on quantification of damages for unlawful arrest and detention wherein a wealth of decided cases were encountered dealing with both the liability question and the quantification exercise, it is the preserve of this third part to discuss the developments in Namibia and Eswatini (Swaziland). Among the cases that stand out for discussion in the Namibian jurisdiction are: Gabriel v Minister of Safety and Security 2010 (2) NR 648 (HC); Iyambo v Minister of Safety and Security 2013 (2) NR 562 (HC); Sheefeni v Council of the Municipality of Windhoek 2015 (4) NR 1170 (HC) and Lazarus v Government of the Republic of Namibia 2018 (1) NR 38 (HC). Similarly, the most important cases from the Eswatini jurisdiction include Mfanafuthi Mabuza v Commissioner of Police (39/06) [2006] SZSC 25 (16 November 2006), which concerned detention classified in the Swazi criminal law as a ‘non-bailable offence’. The other two are Zulu v Government of Swaziland (656/2004) [2016] SZHC 99 (24 June 2016) and Myeni v COP (3064/2007) [2017] SZHC 259 (14 December 2017) where extensive deliberations on quantification and awards were made on different heads of damage.

Fine margins between right and rogue: The right to resist an unlawful arrest and the liberty to assault a police officer in Botswana

by | Feb 20, 2022 | SACJ, SACJ V34 I2 2021

Fine margins between right and rogue: The right to resist an unlawful arrest and the liberty to assault a police officer in Botswana

Author: Baboki Jonathan Dambe

ISSN: 1996-2118
Affiliations: LLB (University of Botswana) LLM (Edinburgh), Lecturer in Law, Department of Law, University of Botswana
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 191 – 213
https://doi.org/10.47348/SACJ/v34/i2a2

Abstract

On the face of it, the contention that a person is entitled to resist arrest and may, in certain circumstances, have defensible justification for assaulting a police officer, appears incongruous with law and order. Yet, the common law recognises and preserves the right of every individual to resist unlawful arrest and exonerates the individual if they assault a police officer in the process of rebuffing such unlawful arrest. This paper interrogates the scope and application of this right in Botswana. It highlights the delicate balance that must be struck between the exercise of this common law right and the protection of police officers from assaults in the lawful execution of their duties. This is done through an assessment of relevant statutory provisions, local cases, and the approaches adopted in other jurisdictions that recognise the right to resist an unlawful arrest. The paper also briefly explores the civil remedies that are available to an individual who has been subjected to an unlawful arrest and detention.

The Black Flame (part one): Snyman’s Criminal Law

by | Feb 20, 2022 | SACJ, SACJ V34 I2 2021

The Black Flame (part one): Snyman’s Criminal Law

Author: Tshepo Mosaka

ISSN: 1996-2118
Affiliations: LLB (Wits) LLM (UCT) PhD (Nottingham), Lecturer in Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 214 – 230
https://doi.org/10.47348/SACJ/v34/i2a3

Abstract

The latest edition of Snyman’s Criminal Law has reached the status of scholarly immortality. It has been revised by Hoctor, but Snyman’s name lives on. This is consistent with the argument made in Part one of the review of this book. This is a review conducted through a trilogy of papers, analogous to WEB du Bois’s trilogy of novels entitled the Black Flame. Part one begins by clarifying why this review is conducted in this way. The paper then proceeds to contextualise Snyman’s Criminal Law alongside the two dominant traditions of South African criminal law, following the work of Gardiner and Lansdown and De Wet and Swanepoel. Thirdly, the paper concludes by developing the argument that South African criminal law remains in a perpetual northbound-gaze towards Europe and away from Africa. This theme is developed further in Parts two and three of this review.