Enhancing the criminal justice response to human trafficking in South Africa: Legislation and case law in the spotlight

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Enhancing the criminal justice response to human trafficking in South Africa: Legislation and case law in the spotlight

Author: Beatri Kruger

ISSN: 1996-2118
Affiliations: BA, LLB, LLM, LLD, Emeritus Professor and Research Fellow, Free State Centre for Human Rights, Faculty of Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 48 – 83
https://doi.org/10.47348/SACJ/v37/i1a3

Abstract

Human traffickers continually develop new tactics to trick and trap their victims, making human trafficking a complex and evolving crime that demands a robust criminal justice response. This response must be consistently refined to combat this pervasive crime effectively. In South Africa, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (Trafficking Act) came into force in 2015 to address the multifaceted crime. Now, after eight years, this article delves into the status of the counter-trafficking response, focusing on the efficacy of the anti-trafficking legislation and its implementation by the courts. It was found that, first, the Trafficking Act, as previously confirmed, complies with international minimum standards, and encompasses all forms of trafficking. Secondly, through the implementation and interpretation of this legislation, the courts have established jurisprudence on human trafficking, making a significant contribution to the criminal justice response. By reviewing case law spanning the period 2009 to 2023, this article aims to contribute novel insights to the existing body of knowledge, based on evidence tested in courts. Examining emerging case law, the article sheds light on various features of human trafficking within the criminal justice arena. It focuses specifically on the gravity and nature of human trafficking, penalties imposed by the courts, both domestic and cross-border trafficking, and new insights into various types of trafficking perpetrated within South Africa. Notably, court judgments increasingly offer binding and clarifying decisions. Case law has endorsed the only legally binding definition of human trafficking and provided interpretations of concepts in trafficking legislation. However, alongside the positive contributions of case law, the article also identifies legislative challenges. Consequently, recommendations are presented to enhance and fortify the criminal justice response to human trafficking in South Africa.

Policing in a failing state: An impossible mission

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Policing in a failing state: An impossible mission

Author: David Masiloane

ISSN: 1996-2118
Affiliations: DLitt et Phil (Unisa); Professor, Department of Police Practice, Unisa
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 84 – 102
https://doi.org/10.47348/SACJ/v37/i1a4

Abstract

The political interference and poor governance lead to a weak police service that fails to provide safety and security to communities. This exposes people to crime and criminality and makes them lose trust in the police, compelling them to take the law into their own hands. A weak state paralyses the police, and a paralysed police service reflect a weak state. This study analysed books, articles, and print and electronic media to determine whether South Africa exhibits some of the characteristics of a failing state, and what impact this has on the police and policing in the country. The failure of the state at any level – such as the inability of the National Student Financial Aid Scheme to speedily disburse financial aid to students, municipalities’ incapacity to render services to communities, and the police’s powerlessness in dealing with high crime rates – leads to public discontent, anger and frustration, which tend to be expressed through violent protests. The policing of these protests is often criticised as being either indecisive or brutal, thus presenting a continuous challenge to police leadership on how to strike a sensitive balance between indecisiveness and brutality.

The Prosecutor v Dominic Ongwen case before the International Criminal Court: A Twail-er’s perspective

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

The Prosecutor v Dominic Ongwen case before the International Criminal Court: A Twail-er’s perspective

Author: Linda Mushoriwa

ISSN: 1996-2118
Affiliations: LLB (University of Zimbabwe) LLM (Unisa) PhD (University of KwaZulu-Natal); Researcher, African Centre for Transnational Criminal Justice, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 103 – 126
https://doi.org/10.47348/SACJ/v37/i1a5

Abstract

This paper explores whether the International Criminal Court (ICC or ‘the court’) has lived up to the expectation of being an effective and universal mechanism of international criminal justice and accountability, by using the judgment of the Prosecutor v Dominic Ongwen as a case study. Ongwen was convicted by the court’s Trial Chamber (TC) IX in February 2021, on 61 charges of war crimes and crimes against humanity perpetrated in Northern Uganda between July 2002 and December 2005, and sentenced to 25 years’ imprisonment. The Appeals Chamber (AC) confirmed both the conviction and sentence in a judgment rendered on 15 December 2022. It will be argued from a Third World approaches to international law (TWAIL) perspective, that the court missed an opportunity to improve its institutional legitimacy, considering the legitimacy deficit stemming from claims by African states that the ICC is biased against Africa. The paper will also argue that the court missed an opportunity to improve its own decision-making by expanding its source material to include sources from the Global South.