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.

Defining the contours of a ‘criminal gang’ and a ‘pattern of criminal gang activity’ under the Prevention of Organised Crime Act

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

Defining the contours of a ‘criminal gang’ and a ‘pattern of criminal gang activity’ under the Prevention of Organised Crime Act

Author: Delano van der Linde

ISSN: 1996-2118
Affiliations: LLB LLM LLD (Stell), Senior Lecturer, Department of Public Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 231 – 258
https://doi.org/10.47348/SACJ/v34/i2a4

Abstract

Before an accused can be convicted under Chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (POCA), two preliminary elements must be proven. These preliminary elements can be found under Chapter 1, and require the accused to be a gang member or active participant in a criminal gang and that a pattern of criminal gang activity should exist. Even though POCA was promulgated over 20 years ago, much uncertainty still exists as to the interpretation of various elements of the preliminary requirements under Chapter 1. This article examines the requirements set out in Chapter 1 of POCA, with a specific focus on how courts have interpreted these requirements. To do so, reference is made, amongst others, to the California Street Terrorism Enforcement and Prevention Act of 1988 (STEP) (as POCA was modelled after this legislation) and Chapter 2 of POCA (which deals with racketeering and is similarly structured to Chapter 4). This article will ultimately illustrate that courts have largely ignored these definitions which gave rise to legal uncertainty. Various suggestions will be made regarding the amendment or desired interpretation of these definitions.

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.