Substantive equality, restorative justice and the sentencing of rape offenders

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Substantive equality, restorative justice and the sentencing of rape offenders

Authors Amanda Spies

ISSN: 1996-2118
Affiliations: Associate Professor, Department of Public, Constitutional and International Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 273 – 291

Abstract

This article explores the concept of substantive equality and how, as a constitutional value, it requires the consideration and application of restorative justice principles in the sentencing of rape offenders. With sexual violence being a difficult and controversial area in which to apply restorative justice principles, there is a need to understand the necessity for its application and analyse how it has been applied by South African courts. The argument is made that restorative justice should be seen as a method that gives effect to substantive equality values, allowing for a victim’s needs and context (including that of the offender) to be taken into account in handing down a just sentence.

A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

Authors D Erasmus, NC Ndzengu

ISSN: 1996-2118
Affiliations: Associate Professor, Department of Criminal and Procedural Law, Faculty of Law, Nelson Mandela Metropolitan University, Port Elizabeth, South Africa and Attorney of the High Court of South Africa; Senior Deputy Director of Public Prosecutions: Asset Forfeiture Unit (AFU), Port Elizabeth and Attorney of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 247 – 272

Abstract

The Prevention of Organised Crime Act 121 of 1998 provides for both criminal and civil forfeiture regimes. In the case of criminal forfeiture, the confiscation machinery provided for may only be invoked when the ‘defendant’ is convicted of an offence. Civil forfeiture provides for forfeiture of the proceeds of and instrumentalities used in crime, but this form of forfeiture is not conviction-based and may even be invoked when there is no prosecution. The National Director of Public Prosecutions (NDPP) via appointed legal practitioners chooses in each case which asset forfeiture regime to invoke, depending on the facts of the case. The recent judgment of Ntsoko v National Director of Public Prosecutions deals with a review of the decision of the NDPP to resort to civil forfeiture, as opposed to criminal forfeiture, and an attempt to constrain the exercise of these powers in this regard. The court held that the decision of the NDPP to invoke civil, instead of criminal forfeiture, is reviewable as a consequence of the principle of legality. In this contribution it will be argued that the court in fact introduced and extended the application of the principle of legality into asset forfeiture jurisprudence. The extension of the principle of legality was applied as a constitutional imperative or an interpretive tool to review the decision of the NDPP.

Corporate accountability in South Africa: Sharpening the role of criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Corporate accountability in South Africa: Sharpening the role of criminal law

Authors John Paul Ongeso

ISSN: 1996-2118
Affiliations: Post-doctoral Research Fellow at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg, South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 225 – 246

Abstract

South Africa’s Criminal Procedure Act 51 of 1977 adopts a derivative model of establishing corporate liability. This article argues that this model has a number of limitations that render it ineffective for corporate accountability for serious human rights violations and crimes. It considers an alternative model of non-derivative criminal liability and discusses how this may apply to the South African context through its inclusion in the Act. This article also draws from legislative schemes in the United Kingdom and Australia that have incorporated non-derivative models for corporate criminal liability.

The raison d’être of hate-crime laws

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

The raison d’être of hate-crime laws

Authors Kamban Naidoo

ISSN: 1996-2118
Affiliations: Senior Lecturer, Department of Criminal and Procedural Law, UNISA
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 158 – 172

Abstract

Hate-crime laws include laws that specifically criminalise unlawful conduct motivated by bias or prejudice towards personal characteristics of the victim and laws that allow for the imposition of harsher penalties on convicted hate-crime offenders. Such laws are often justified on the retributive basis that hate crimes cause greater harms than crimes that are not motivated by bias or prejudice. The imposition of a harsher punishment on the convicted hate-crime offender is therefore justifiable since it is proportional to the harms caused and because it is the offender’s just desert. However this retributive justification for hate-crime laws has been the subject of academic criticism. This article therefore attempts to find an alternative rationale for hate-crime laws by exploring denunciation as another justification for retribution and by considering the utilitarian theory of punishment. The South African context is considered since hate-crime laws do not presently exist in South African law. This article posits that the enactment of a hatecrime law in South Africa could be regarded as a symbolic commitment to equality since hate crimes are said to violate the right to equality.

Considering parental alienation under the aegis of the criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

Considering parental alienation under the aegis of the criminal law

Authors Charnelle van der Bijl

ISSN: 1996-2118
Affiliations: Professor in the Department of Criminal and Procedural Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 140 – 157

Abstract

Parental alienation conduct forms the focus of this article. It is distinguished from the parental alienation syndrome which identifies specific behavioural symptoms in children exposed to parental alienation. The harms caused by parental alienation conduct are investigated. The manner in which family courts deal with parental alienation is examined as well by the best interests of a child standard. Parental alienation conduct is identified as a form of emotional and psychological abuse and as a form of domestic violence. The lacunae evident in the approaches adopted by the family courts are examined and highlighted. Legislation regulating and proscribing parental alienation abroad are considered. The field of criminal law is examined in order to establish solutions to the gaps that are evident in the family law. A cross-dimensional approach between family law and criminal law is also suggested.

Reflections on the trivialisation of genocide: Can we afford to part with the special stigma attached to genocide?

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

Reflections on the trivialisation of genocide: Can we afford to part with the special stigma attached to genocide?

Authors Beitel van der Merwe

ISSN: 1996-2118
Affiliations: Law Researcher and Coordinator of the African Group of Experts on International Criminal Justice
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 116 – 139

Abstract

Objections to the trivialisation (or banalisation) of genocide are often raised, but almost always without any deeper exploration of the underlying issues giving rise to these objections. This article focuses on the main legal and extra-legal concerns regarding the trivialisation of genocide and addresses the following questions: are concerns regarding the trivialisation of genocide justified? And, why is it important to retain the ‘awesome nature’ of the crime of genocide, especially considering the fact that genocide is widely viewed as constituting a specific, and not necessarily a more egregious, form of crimes against humanity? The article provides a brief discussion of the debate surrounding the existence of a hierarchy of international crimes, more specifically, whether genocide represents the ultimate crime within such a hierarchy. While it appears that genocide does not constitute the ultimate crime in a de jure sense, it is argued that genocide remains de facto the ultimate crime and that it has a special stigma attached to it. The article highlights these features of genocide as the primary cause of two phenomena threatening to undermine the significance of genocide, namely, judicial and extra-judicial trivialisation. These types of trivialisation together with examples are described separately. Finally, the article examines various practical and policy reasons for the maintenance of a sharp distinction, both legally and extra-legally, between genocide and crimes against humanity.