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

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

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)

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.