Homeless victimisation in South Africa and its potential inclusion in the Hate Crime and Hate Speech Bill

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

Homeless victimisation in South Africa and its potential inclusion in the Hate Crime and Hate Speech Bill

Author: Jean-Paul Pophaim

ISSN: 1996-2118
Affiliations: MSocSci (UFS), Lecturer in Criminology, University of the Free State
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 259 – 280
https://doi.org/10.47348/SACJ/v34/i2a5

Abstract

Homelessness is widely seen as a persistent social issue, one that has existed for many years. Although notably under-researched, there exist some reports of severe experiences of victimisation. Due to the very nature of their lifestyle and other external factors, homeless individuals can expect to, and often do experience violence and victimisation at disproportionate rates. Furthermore, homeless individuals are commonly viewed as a surplus population or a disposable mass that cannot possibly be regarded as what society considers an ‘ideal victim’. With the presence of negative socially constructed labels, they are frequently exposed to harsh treatment by other members of society and consequently stripped of their basic constitutional rights, where in many contexts, their very existence is criminalised. Protective legislation at a domestic level is a neglected area and is yet to align with some major international developments, where homeless victimisation has already been identified as a serious enough problem that arguments for its inclusion under hate crime legislation have already started to surface. This paper therefore aims to put forward an argument regarding the plausibility of including the status of homelessness as a new category under the developing Hate Crime and Hate Speech Bill of South Africa.

A long history of being fed up: Anti-crime mobilisation on the Cape Flats: a case study

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

A long history of being fed up: Anti-crime mobilisation on the Cape Flats: a case study

Author: Elrena van der Spuy

ISSN: 1996-2118
Affiliations: MA (Stell) PhD (UCT), Associate Professor, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 281 – 306
https://doi.org/10.47348/SACJ/v34/i2a6

Abstract

Anti-crime mobilisation has a long and chequered history in South Africa. Over the years, such forms of mobilisation have come in various shapes and sizes. In this paper, the authors explore one example of a broad-based anti-crime mobilisation that evolved on the Cape Flats from 1994 to 2006. Documentary analysis and field data allow reflection on the social context within which the Western Cape Anti-Crime Forum (WCACF) emerged, and the political sensibilities and social aspirations that shaped its course. The article considers the local safety issues that dominated the deliberations, the mobilising strategies utilised, and the networks activated in pursuit of community safety. The social history of the Forum as recounted here hopefully provides insight into the key concerns of this particular initiative as well as the kind of factors that shape, more generally, the fortunes and misfortunes of anti-crime alliances. Such insights may be of comparative use as the authors try to make sense of contemporary manifestations of a myriad of instances of anti-crime mobilisation.

Bail pending appeal in Uganda

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

Bail pending appeal in Uganda

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (UP) LLM (UFS) LLD (UWC), Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 307 – 338
https://doi.org/10.47348/SACJ/v34/i2a7

Abstract

Article 23(6) of the Constitution of Uganda (1995) provides that an arrested person is ‘entitled’ to apply to court for bail. However, it is silent on the issue of bail pending appeal. Bail pending appeal is provided for in the Magistrates Courts Act, the Judicature Act and the Criminal Procedure Code Act. Although the Supreme Court, the highest court in Uganda, provided criteria for granting bail pending appeal, some high court and Court of Appeal judges, who are bound by the decisions of the Supreme Court, have ignored these criteria. There are conflicting high court, Court of Appeal and Supreme Court judgments on the questions of whether art 23(6) is applicable to bail pending appeal and whether the right to be presumed innocent is applicable to a person who is applying for bail pending appeal. There are notable controversies in the rich jurisprudence of the Supreme Court on bail pending appeal. In October 2020, one of the justices of the Supreme Court held that the Supreme Court does not have the jurisdiction to grant bail pending appeal and that Rule 6(2)(a), which empowers the Supreme Court to grant bail pending appeal, is unconstitutional. In November 2020, another Supreme Court justice granted an applicant bail pending appeal without even referring to her colleague’s decision which held that the court did not have jurisdiction to grant bail pending appeal. This article examines the jurisprudence developed by the courts of Uganda on the subject. The discussion focuses on the following issues: courts with jurisdiction to grant bail pending appeal; the right to bail pending appeal; the presumption of innocence and bail pending appeal; and conditions for granting bail pending appeal.

Lay participation in the South African criminal justice system: An assessment of the assessor system

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

Lay participation in the South African criminal justice system: An assessment of the assessor system

Authors: B Tshehla & MC Marumoagae

ISSN: 1996-2118
Affiliations: B Proc (North) LLM (UCT), Senior Lecturer, School of Law, University of the Witwatersrand; LLB LLM (Wits) LLM (NWU) PhD (UCT) AIPSA Diploma in Insolvency Law and Practice (UP), Associate Professor, School of Law, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 339 – 361
https://doi.org/10.47348/SACJ/v34/i2a8

Abstract

This paper sets out to demonstrate that the South African assessor system is not structured in a manner that holds the promise of adequately catering for the intended goal of promoting lay participation by community members in the adjudication of criminal cases. It identifies several challenges with the current assessor system in South Africa such as the unjustifiable differentiation between the assessor system in the magistrates’ courts and the high court which undermines this system as a form of lay participation. In the high court, assessors are required to have experience in the administration of justice or some other skill deemed useful in the case tried. This is not required of assessors in the magistrates’ courts. The paper also illustrates that there are no legislative guidelines on the appointment of assessors which leads to wide discretion being given to presiding officers in the appointment of assessors, which could potentially lead to the adoption of different approaches to similar cases. The key argument presented is that the discretion enjoyed by presiding officers when considering whether to use assessors should be limited by legislation. Most importantly, it is argued that that the legislature should consider reforming the assessor system with a view to establishing a system that will be equally applicable to both the high court and magistrates’ courts as the current differentiation seems unjustifiable.

Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action

by | Feb 13, 2022 | SALJ, SALJ V139 I1 2022

Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action

Author: Zeenat Emmamally

ISSN: 1996-2177
Affiliations: Independent Researcher
Source: South African Law Journal, Volume 139 Issue 1, p. 1-31
https://doi.org/10.47348/SALJ/v139/i1a1

Abstract

A pernicious strand of legal proceedings, instituted by affluent parties to cow their critics into silence, is sweeping through the world, discouraging engagement on issues of public interest. These proceedings, termed strategic litigation against public participation (SLAPP) suits, have had deleterious effects on a range of rights, prompting civil society to push for targeted legislative protection against these lawsuits. After examining the phenomenon of SLAPP suits in South Africa and the inefficacy of existing protections, this article acknowledges that the enactment of anti-SLAPP legislation is necessary, and considers what this legislation should look like in South Africa. However, since the experience of other jurisdictions reveals that anti-SLAPP laws have occasionally been ineffective or have been subverted to create further injustice, this article recommends a range of civil society initiatives that could be employed concomitantly with legislation to curb SLAPP suits.

Problems relating to the formation of online contracts: A comparative perspective

by | Feb 13, 2022 | SALJ, SALJ V139 I1 2022

Problems relating to the formation of online contracts: A comparative perspective

Author: Sanmarie van Deventer

ISSN: 1996-2177
Affiliations: Consolidoc Fellow in Private Law, Stellenbosch University
Source: South African Law Journal, Volume 139 Issue 1, p. 32-77
https://doi.org/10.47348/SALJ/v139/i1a2

Abstract

The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.