Pub Date : 2020-12-25DOI: 10.17159/2413-3108/2020/VN69A7232
Sipho Mzakwe
At the end of 2018, the Western Cape High Court handed down a ground-breaking judgment in the case of Social Justice Coalition and Others v Minister of Police and Others. The court held that the distribution of police personnel in the Western Cape unfairly discriminated against black and poor people on the basis of race and poverty. As the first case in South Africa recognising poverty as a discrete ground of discrimination, the judgment marks a significant development in the country’s equality rights jurisprudence. In addition, the court’s recognition that police distribution in the Western Cape is unfairly discriminatory has profound implications for the system of allocating police resources in that province, and potentially across the country. In this case note I summarise the key issues in the case and offer an analysis of the court’s approach, arguing that while the case is to be lauded for its recognition of poverty as a ground of discrimination there are also some missed opportunities. Most significantly, the practical impact of the judgment has yet to be determined as the court limited its order to declaratory relief, requiring the parties to return to argue on the further practical remedy that should follow.
{"title":"Equitable allocation of police human resources: Social Justice Coalition and Others v Minister of Police and Others","authors":"Sipho Mzakwe","doi":"10.17159/2413-3108/2020/VN69A7232","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/VN69A7232","url":null,"abstract":"At the end of 2018, the Western Cape High Court handed down a ground-breaking judgment in the case of Social Justice Coalition and Others v Minister of Police and Others. The court held that the distribution of police personnel in the Western Cape unfairly discriminated against black and poor people on the basis of race and poverty. As the first case in South Africa recognising poverty as a discrete ground of discrimination, the judgment marks a significant development in the country’s equality rights jurisprudence. In addition, the court’s recognition that police distribution in the Western Cape is unfairly discriminatory has profound implications for the system of allocating police resources in that province, and potentially across the country. \u0000In this case note I summarise the key issues in the case and offer an analysis of the court’s approach, arguing that while the case is to be lauded for its recognition of poverty as a ground of discrimination there are also some missed opportunities. Most significantly, the practical impact of the judgment has yet to be determined as the court limited its order to declaratory relief, requiring the parties to return to argue on the further practical remedy that should follow.","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46207068","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}
Pub Date : 2020-12-24DOI: 10.17159/2413-3108/2020/V0N69A6380
Sheena Swemmer
This article presents data from a study conducted by the Medical Research Council of South Africa, focusing on rape attrition in South Africa at different stages in the processes (from reporting at a police station to potential conviction). The study found that of the 3 952 reported cases of rape analysed 65% were referred to prosecution, and trials commenced in 18,5% of cases. Of the total 3 952 cases reported, 8,6% resulted in a guilty verdict. Using qualitative data from a subset of trial transcripts, the article focuses specifically on the problematic views of both presiding officers and prosecutors based on rape myths and gender-stereotyping at trial, and suggests that these are a factor affecting the attrition rate between cases referred to trial and those that result in a not guilty verdict.
{"title":"Justice denied? Prosecutors and presiding officers' reliance on evidence of previous sexual history in South African rape trials","authors":"Sheena Swemmer","doi":"10.17159/2413-3108/2020/V0N69A6380","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/V0N69A6380","url":null,"abstract":"This article presents data from a study conducted by the Medical Research Council of South Africa, focusing on rape attrition in South Africa at different stages in the processes (from reporting at a police station to potential conviction). The study found that of the 3 952 reported cases of rape analysed 65% were referred to prosecution, and trials commenced in 18,5% of cases. Of the total 3 952 cases reported, 8,6% resulted in a guilty verdict. Using qualitative data from a subset of trial transcripts, the article focuses specifically on the problematic views of both presiding officers and prosecutors based on rape myths and gender-stereotyping at trial, and suggests that these are a factor affecting the attrition rate between cases referred to trial and those that result in a not guilty verdict.","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43744230","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}
Pub Date : 2020-12-24DOI: 10.17159/2413-3108/2020/vn69a8351
Hendrik Van As
Certain marine living resources of South Africa are under severe threat from international organised crime syndicates in conjunction with local fishers. These criminal activities erode respect for the rule of law and lead to socio-economic degradation and the proliferation of gangsterism. The current government approach as custodians of the resources is to maximise the return from confiscations. SAPS are not using the full power of the law to address poaching of marine living resources, particularly abalone, as a priority crime and do not allocate their resources commensurate with the value of the commodity. As a country that is beleaguered by fisheries crime, overfishing and exploitation, South Africa must take a tough stance and should pursue criminal organisations with all the power that the state can muster. It must also ensure that national fisheries resource management is improved so that local communities can benefit. The implementation of a conforming strategy would be socially and politically unpopular, but the future benefits will outweigh the outlay.
{"title":"Poaching of marine living resources: Can the tide be turned?","authors":"Hendrik Van As","doi":"10.17159/2413-3108/2020/vn69a8351","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/vn69a8351","url":null,"abstract":"Certain marine living resources of South Africa are under severe threat from international organised crime syndicates in conjunction with local fishers. These criminal activities erode respect for the rule of law and lead to socio-economic degradation and the proliferation of gangsterism. The current government approach as custodians of the resources is to maximise the return from confiscations. SAPS are not using the full power of the law to address poaching of marine living resources, particularly abalone, as a priority crime and do not allocate their resources commensurate with the value of the commodity. As a country that is beleaguered by fisheries crime, overfishing and exploitation, South Africa must take a tough stance and should pursue criminal organisations with all the power that the state can muster. It must also ensure that national fisheries resource management is improved so that local communities can benefit. The implementation of a conforming strategy would be socially and politically unpopular, but the future benefits will outweigh the outlay.","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47242572","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}
Pub Date : 2020-12-24DOI: 10.17159/2413-3108/2020/VN69A7821
F. Osman
The Traditional Courts Bill B1B-2017 omits the opt-out clause and the notion that engagement with traditional courts is on a voluntary and consensual basis – a long-standing sticky point with traditional leaders. Under the Bill, individuals are bound to attend a traditional court when summoned and cannot opt-out of the system, which conflicts starkly with the notion of customary law as a voluntary and consensual system of law. This article argues that compelling individuals to attend a traditional court may be unconstitutional for unjustifiably infringing the rights to culture, a fair trial and equality.
{"title":"The omission of the opt-out clause: The revised (and improved?) Traditional Courts Bill 2017","authors":"F. Osman","doi":"10.17159/2413-3108/2020/VN69A7821","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/VN69A7821","url":null,"abstract":"The Traditional Courts Bill B1B-2017 omits the opt-out clause and the notion that engagement with traditional courts is on a voluntary and consensual basis – a long-standing sticky point with traditional leaders. Under the Bill, individuals are bound to attend a traditional court when summoned and cannot opt-out of the system, which conflicts starkly with the notion of customary law as a voluntary and consensual system of law. This article argues that compelling individuals to attend a traditional court may be unconstitutional for unjustifiably infringing the rights to culture, a fair trial and equality.","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46327726","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}
Pub Date : 2020-12-24DOI: 10.17159/2413-3108/2020/V0N69A8351
H. V. As
{"title":"Poaching of marine living resources : Can the tide be turned?","authors":"H. V. As","doi":"10.17159/2413-3108/2020/V0N69A8351","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/V0N69A8351","url":null,"abstract":"","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":"1 1","pages":"23-34"},"PeriodicalIF":0.5,"publicationDate":"2020-12-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48589773","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}
Pub Date : 2020-12-22DOI: 10.17159/2413-3108/2020/vn69a7444
Hendrik Van As, D. Erasmus
A popular perception shared by peace officers and the public alike is that the payment of an admission of guilt fine finalises the judicial process and no criminal record will result. However, paying an admission of guilt fine in terms of section 56 of the Criminal Procedure Act means that the person is deemed to have been convicted and sentenced in a court of law. People who pay admission of guilt fines later discover with shock that they in fact have a criminal record, with severe consequences. Often costly High Court applications will have to be instituted to set aside the conviction and sentence. Peace officers have a duty to inform a person of the consequences of paying an admission of guilt fine, but often do not do so and even abuse the admission of guilt system to finalise matters speedily. This article examines the consequences for a person who pays an admission of guilt fine. It further investigates whether there is a duty on Legal Aid South Africa to provide legal assistance in these matters and whether an administrative infringement process should be investigated.
{"title":"Admission of guilt fines: a legal shortcut or delayed shock?","authors":"Hendrik Van As, D. Erasmus","doi":"10.17159/2413-3108/2020/vn69a7444","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/vn69a7444","url":null,"abstract":" \u0000A popular perception shared by peace officers and the public alike is that the payment of an admission of guilt fine finalises the judicial process and no criminal record will result. However, paying an admission of guilt fine in terms of section 56 of the Criminal Procedure Act means that the person is deemed to have been convicted and sentenced in a court of law. People who pay admission of guilt fines later discover with shock that they in fact have a criminal record, with severe consequences. Often costly High Court applications will have to be instituted to set aside the conviction and sentence. Peace officers have a duty to inform a person of the consequences of paying an admission of guilt fine, but often do not do so and even abuse the admission of guilt system to finalise matters speedily. This article examines the consequences for a person who pays an admission of guilt fine. It further investigates whether there is a duty on Legal Aid South Africa to provide legal assistance in these matters and whether an administrative infringement process should be investigated.","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47620154","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}
Pub Date : 2020-12-22DOI: 10.17159/2413-3108/2020/V0N69A6464
D. C. V. D. Linde
Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998. This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? Furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act? CRIME QUARTERLY No. 69 | 2020
{"title":"The criminalisation of gang activity in South Africa: Re-assessing the rationale","authors":"D. C. V. D. Linde","doi":"10.17159/2413-3108/2020/V0N69A6464","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/V0N69A6464","url":null,"abstract":"Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998. This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? Furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act? CRIME QUARTERLY No. 69 | 2020","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":"1 1","pages":"35-44"},"PeriodicalIF":0.5,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45020113","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}
Pub Date : 2020-12-22DOI: 10.17159/2413-3108/2020/vn69a6464
Delano Cole Van der Linde
Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998. This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? Furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act?
{"title":"The criminalisation of gang activity in South Africa: reassessing the rationale","authors":"Delano Cole Van der Linde","doi":"10.17159/2413-3108/2020/vn69a6464","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/vn69a6464","url":null,"abstract":"Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998. This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? Furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act?","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45769738","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}
Pub Date : 2020-11-23DOI: 10.17159/2413-3108/2020/vn69a9253
E. Cameron
This article builds on two lectures (delivered in 2017 and 2019 at the University of the Western Cape and the University of Cape Town respectively) that addressed a a controversial and often overlooked crisis in the criminal justice system – the minimum sentencing regime. The paper argues that minimum sentences are no response at all to curbing crime in South Africa and to making our people safe. The minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. It has been an extravagant mistake of science, understanding, and policy and social response. The article summarises some of the arguments and considers why we are still stuck with minimum sentences when they are demonstrably useless and counterproductive. The author argues that the reasons lie in our broken history, in incoherent decision-making in our present political leadership, institutional incompetence, and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions.
{"title":"The crisis of criminal justice in South Africa","authors":"E. Cameron","doi":"10.17159/2413-3108/2020/vn69a9253","DOIUrl":"https://doi.org/10.17159/2413-3108/2020/vn69a9253","url":null,"abstract":"This article builds on two lectures (delivered in 2017 and 2019 at the University of the Western Cape and the University of Cape Town respectively) that addressed a a controversial and often overlooked crisis in the criminal justice system – the minimum sentencing regime. The paper argues that minimum sentences are no response at all to curbing crime in South Africa and to making our people safe. The minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. It has been an extravagant mistake of science, understanding, and policy and social response. The article summarises some of the arguments and considers why we are still stuck with minimum sentences when they are demonstrably useless and counterproductive. The author argues that the reasons lie in our broken history, in incoherent decision-making in our present political leadership, institutional incompetence, and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions. \u0000 \u0000 ","PeriodicalId":54100,"journal":{"name":"South African Crime Quarterly-SACQ","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45914032","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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