{"title":"Recent Case: General principles and specific offences","authors":"Adriaan Anderson","doi":"10.47348/sacj/v34/i2a10","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115473536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (3)","authors":"C. Okpaluba","doi":"10.47348/sacj/v34/i2a1","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a1","url":null,"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.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116036458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Comment: Loyiso Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (8 October 2021): Oblique subscription to rape myths as an indication of the urgent need to reform the mens rea test in acquaintance rape cases in South Africa","authors":"M. Roux","doi":"10.47348/sacj/v35/i3a4","DOIUrl":"https://doi.org/10.47348/sacj/v35/i3a4","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121996890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Recent Case: General principles of criminal law","authors":"S. Hoctor","doi":"10.47348/sacj/v35/i2a5","DOIUrl":"https://doi.org/10.47348/sacj/v35/i2a5","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116286099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Part three of this trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled the Black Flame) concludes an extraordinarily prolonged attempt to open a dialogue with the esteemed author and revisor of Snyman’s Criminal Law. The core message of this trilogy is that a small window into a vibrant indigenous criminal law scholarship that is not perpetually northbound-gazing towards Europe has been opened by the latest edition of Snyman’s Criminal Law. The first two parts of this trilogy revealed some of the areas in which the next edition, and South African criminal law scholarship in general, can proceed further into this decolonial direction. This third paper builds on the first two, which focused mainly on the introductory and historical aspects (part one), and the General Part (part two) respectively, by focusing on the Special Part of South African criminal law. In particular, this paper makes decolonial interventions in three areas in which it is argued that the next edition of the book can improve: (i) the taxonomic arrangement of offences; (ii) the total exclusion of African customary law offences from the discussion; and (iii) the complex crime of corruption.
{"title":"The Black Flame (part three): Snyman’s Criminal Law","authors":"T. Mosaka","doi":"10.47348/sacj/v35/i1a1","DOIUrl":"https://doi.org/10.47348/sacj/v35/i1a1","url":null,"abstract":"Part three of this trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled the Black Flame) concludes an extraordinarily prolonged attempt to open a dialogue with the esteemed author and revisor of Snyman’s Criminal Law. The core message of this trilogy is that a small window into a vibrant indigenous criminal law scholarship that is not perpetually northbound-gazing towards Europe has been opened by the latest edition of Snyman’s Criminal Law. The first two parts of this trilogy revealed some of the areas in which the next edition, and South African criminal law scholarship in general, can proceed further into this decolonial direction. This third paper builds on the first two, which focused mainly on the introductory and historical aspects (part one), and the General Part (part two) respectively, by focusing on the Special Part of South African criminal law. In particular, this paper makes decolonial interventions in three areas in which it is argued that the next edition of the book can improve: (i) the taxonomic arrangement of offences; (ii) the total exclusion of African customary law offences from the discussion; and (iii) the complex crime of corruption.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125296527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Recent Case: Law of Evidence","authors":"N. Whitear-Nel","doi":"10.47348/sacj/v36/i1a8","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a8","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125556096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The delicate process of constitution-making during transition covers a range of issues, but usually features questions on how to address past human rights violations, change repressive laws, recognise basic rights and reform state institutions. Hence, the constitution-making process can have significant implications on the transitional justice mechanisms that are adopted and how they are implemented. In the case of Ghana, the 1992 Constitution came into force after decades of political instability. On 28 April 1992, a draft constitution for Ghana’s fourth republic was approved in a referendum. As part of the transitional provisions in the 1992 Constitution, amnesty provisions were enshrined to protect members of all previous military regimes from prosecution. However, the 1992 Constitution did not contain express provisions for initiation of other transitional justice mechanisms. In a bid to reflect on the rarely examined relationship between transitional justice mechanisms and constitutionalism, this paper shall examine Ghana’s amnesty laws, truth commission and reparative measures in relation to the constitution-making process and constitutional norms. The paper opines that as separate processes towards a common end, proper synchronisation of Ghana’s transitional justice processes and constitution-making could have shaped the country’s transitional justice mechanisms in the right direction towards achieving their perceived goals.
{"title":"Transitional justice and constitutionalism: The case of Ghana","authors":"Marian Yankson-Mensah","doi":"10.47348/SACJ/V33/I3A2","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A2","url":null,"abstract":"The delicate process of constitution-making during transition covers a range of issues, but usually features questions on how to address past human rights violations, change repressive laws, recognise basic rights and reform state institutions. Hence, the constitution-making process can have significant implications on the transitional justice mechanisms that are adopted and how they are implemented. In the case of Ghana, the 1992 Constitution came into force after decades of political instability. On 28 April 1992, a draft constitution for Ghana’s fourth republic was approved in a referendum. As part of the transitional provisions in the 1992 Constitution, amnesty provisions were enshrined to protect members of all previous military regimes from prosecution. However, the 1992 Constitution did not contain express provisions for initiation of other transitional justice mechanisms. In a bid to reflect on the rarely examined relationship between transitional justice mechanisms and constitutionalism, this paper shall examine Ghana’s amnesty laws, truth commission and reparative measures in relation to the constitution-making process and constitutional norms. The paper opines that as separate processes towards a common end, proper synchronisation of Ghana’s transitional justice processes and constitution-making could have shaped the country’s transitional justice mechanisms in the right direction towards achieving their perceived goals.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126533164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Fine margins between right and rogue: The right to resist an unlawful arrest and the liberty to assault a police officer in Botswana","authors":"B. Dambe","doi":"10.47348/sacj/v34/i2a2","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a2","url":null,"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.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"212 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132559002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"The right to bail pending trial in Uganda","authors":"J. D. Mujuzi","doi":"10.47348/sacj/v34/i3a3","DOIUrl":"https://doi.org/10.47348/sacj/v34/i3a3","url":null,"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.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"130 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123072153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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