scholarly journals THE CASE OF S V ZUMA: Implications of allowing evidence of sexual history in rape trials

2006 ◽  
Author(s):  
Jake Moloi
Keyword(s):  
South Africa ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Sexual History ◽  
Administration Of Justice ◽  
Lower Courts ◽  
Rape Trials ◽  
The Impact

Rape is one of the most underreported crimes worldwide, not least because of the trauma facing complainants once the case goes to trial. The case of S v Zuma was a clear illustration of this problem. The court’s decision to allow Zuma’s lawyers to cross-examine the complainant about her sexual history (governed by section 227 of the Criminal Procedure Act) has far-reaching implications. The court’s failure to deal properly with section 227 has set a worrying precedent that is now binding on the lower courts where the majority of rape cases are heard. Moreover, the judgment does not reflect a consideration of the impact on the complainant’s right to human dignity, privacy and equality. This means the court missed an opportunity to align section 227 with the constitutional dictates that now govern the administration of justice in South Africa.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

scholarly journals Human dignity - Our supreme constitutional value

2017 ◽  
Vol 4 (1) ◽  
pp. 42
Author(s):  
Nazeem MI Goolam
Keyword(s):  
South Africa ◽  
Human Dignity ◽  
Modern Technology ◽  
First Year ◽  
Constitutional Court ◽  
The West ◽  
Plural Society ◽  
The Impact ◽  
First Time

As far as constitutional interpretation and statutory interpretation in general is concerned, South Africa is undergoing a transformation from a formal, positivistic vision of law to a substantive, natural law vision of law. And the single most significant factor in this transformation is the existence of constitutional values. For the first time in South Africa, courts (in particular the Constitutional Court) must decide cases on the basis of these values. It is therefore simply erroneous and naive to say that 'the Constitutional Court has been so fixated with the role of 'values' in the first year of its existence' and that the court is 'obsessed' with the role of 'values'. Of these values, the three most fundamental in any open and democratic society are human dignity, equality and freedom. Amongst this trinity of values human dignity finds pride of place. Some of the pertinent questions briefly addressed in this article are: (1) What does human dignity entail?; (2) Is human dignity a right or a duty?; (3) How should it be understood in a plural society such as ours?; (4) What about the impact of modern technology on human dignity?; (5) Is our understanding of the concept/value/idea of human dignity not too European/Western in nature? For example, the issue of gays and lesbians is a human rights and human dignity question in the West, while other cultures find homosexuality abhorrent and uncivilized; and (6) Should we explore a religious and spiritual philosophy of human dignity?

scholarly journals Justice denied? Prosecutors and presiding officers' reliance on evidence of previous sexual history in South African rape trials

2020 ◽  
Author(s):  
Sheena Swemmer
Keyword(s):  
South Africa ◽  
South African ◽  
Qualitative Data ◽  
Rape Myths ◽  
Sexual History ◽  
Attrition Rate ◽  
Guilty Verdict ◽  
Police Station ◽  
Rape Trials ◽  
And Gender

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.

Some Reflections on Reparation in Post-Apartheid South Africa, using a Couple Therapy Intervention as a Microcosm of South African Society

2011 ◽  
Vol 1 (2) ◽  
Author(s):  
Andrea Hill ◽  
Sylvia Poss
Keyword(s):  
South Africa ◽  
South African ◽  
Couple Therapy ◽  
South African Society ◽  
Depressive Position ◽  
Central Hypothesis ◽  
Transference And Countertransference ◽  
Constructive Engagement ◽  
The Impact ◽  
Therapy Intervention

The paper addresses the question of reparation in post-apartheid South Africa. The central hypothesis of the paper is that in South Africa current traumas or losses, such as the 2008 xenophobic attacks, may activate a ‘shared unconscious phantasy’ of irreparable damage inflicted by apartheid on the collective psyche of the South African nation which could block constructive engagement and healing. A brief couple therapy intervention by a white therapist with a black couple is used as a ‘microcosm’ to explore this question. The impact of an extreme current loss, when earlier losses have been sustained, is explored. Additionally, the impact of racial difference on the transference and countertransference between the therapist and the couple is explored to illustrate factors complicating the productive grieving and working through of the depressive position towards reparation.

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

Harnessing Digital Technology to Strengthen the Culture of Reading at Public Libraries in South Africa

Mousaion ◽  
2020 ◽  
Vol 38 (3) ◽  
Author(s):  
Harry Ramothupi Matolong
Keyword(s):  
South Africa ◽  
Digital Technology ◽  
Public Libraries ◽  
Pilot Phase ◽  
Impact Measurement ◽  
Private Company ◽  
Line Survey ◽  
Gates Foundation ◽  
Formed Part ◽  
The Impact

Statistics and numerous authors have highlighted the reading crisis in South Africa. At the same instance, more people in South Africa are embracing the potential of digital technology to provide lifelong learning opportunities and also to strengthen the culture of reading. This study is framed against the backdrop and implementation of the Mzansi Libraries On-Line Project in South Africa – a project implemented in line with the Global Libraries Programme of the Bill & Melinda Gates Foundation. The study explored the potential of access to information of digital technology and the contribution of the project to inculcating a culture of reading at public libraries. A benchmark survey was conducted by an independent research company during the pilot phase of the project in 2015. This survey covered library users of the 27 libraries that formed part of the pilot phase, and a further 25 libraries from a representative sample across South Africa. An end-line survey was conducted through a private company towards the conclusion of the countrywide implementation in 2017, based on the Common Impact Measurement System which was customised for South Africa. The benchmark survey found that although ICT in libraries had been used by relatively few people in 2015, the impact of this technology tended to be positive and would be beneficial to the wider society by helping to redress societal imbalances, including education and the culture of reading. The end-line survey found increased benefits of library usage and library technical infrastructure to improve the lives of the communities involved.

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

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