scholarly journals Restorative justice by means of concessions on custodial sentences: The New Zealand approach and possible lessons for South Africa

2017 ◽  
Author(s):  
Emma Charlene Lubaale
Keyword(s):  
South Africa ◽  
New Zealand ◽  
Restorative Justice ◽  
South African ◽  
Retributive Justice ◽  
The Other ◽  
The Supreme Court ◽  
The One ◽  
Criminal Matters ◽  
Court Of Appeal

South African courts, in at least two reported cases, have dealt with restorative justice (RJ) in sentencing offenders (i.e. State v. Thabethe (Thabethe case); State v. Seedat (Seedat case)). In both of these cases, the Supreme Court of Appeal rejected the notion of RJ in its entirety, with the presiding judges ‘[cautioning] seriously against the use of restorative justice as a sentence for serious offences.’ However, in countries such as New Zealand, courts have handed down custodial sentences in cases of serious offences while giving due regard to RJ at the same time. The purpose of this article is to highlight some of the strategies that New Zealand courts have invoked to ensure that a balance is struck between retributive justice and RJ. On the basis of this analysis, a conclusion is drawn that RJ can play a role in criminal matters by having it reflect through reduced sentences. With such a strategy, courts can strike a balance between the clear and powerful need for a denunciating sentence on the one hand and RJ on the other.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

2020 ◽  
Vol 33 (3) ◽  
pp. 617-645
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Personal Liberty ◽  
The Supreme Court ◽  
Present Part ◽  
Court Of Appeal

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

scholarly journals RESTORATIVE JUSTICE AND CASES OF SERIOUS OFFENDING: A SOUTH AFRICAN AND CANADIAN PERSPECTIVE

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Emma Charlene Lubaale
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Restorative Justice ◽  
South African ◽  
Retributive Justice ◽  
Guiding Principle ◽  
Canadian Perspective ◽  
Justice Process ◽  
Criminal Justice Process ◽  
Criminal Matters

The exact meaning, place and role of “restorative justice” (hereinafter “RJ”) in criminal matters remain largely unclear. Often, RJ is reduced to a sentencing option, an alternative to retributive justice and an approach, which cannot co-exist alongside custodial sentences. This oversimplification of the concept of RJ seems to have trickled down to the decisions of courts. Notably, although over the years the use of RJ in criminal matters has grown in its stature and impact, with countries like Canada and South Africa constituting prime examples of the few embracing this system in criminal matters, a critical analysis of the jurisprudence of both countries reveals that its application to criminal matters is shrouded with ambiguity. Most of these courts have reduced RJ to a mere sentencing option, an option that cannot rest comfortably alongside custodial sentences and an alternative to retributive justice. Nowhere is this ambiguity more eminent than in cases of serious offending. Given that custodial sentences are often deemed relevant in cases of serious offending, when RJ is oversimplified, it is often excluded from the overall criminal justice framework, making it impossible for it to co-exist alongside a retributive system of justice. Put differently, the manner in which RJ is being conceptualised is having major implication for its role in the prosecution of cases of serious offending. This article analyses case law that grapples with these issues in Canada and South Africa and on the basis of this analysis, it is argued that for RJ to have a meaningful role, especially in cases of serious offending, it should be perceived as a guiding principle that provides a foundation in the overall criminal justice process rather than a mere sentencing option, an alternative and an approach totally against custodial sentences.

South African Economy: No Easy Life Ahead

2015 ◽  
pp. 104-116
Author(s):  
P. Mozias
Keyword(s):  
Economic Growth ◽  
South Africa ◽  
Interest Rates ◽  
South African ◽  
Trade Unions ◽  
Current Account Deficit ◽  
National Development ◽  
Capital Inflows ◽  
The Other ◽  
The One

South African rand depreciated in 2013–2014 under the influence of a number of factors. Internationally, its weakness was associated with the capital outflow from all emerging markets as a result of QE’s tapering in the US. Domestically, rand plummeted because of the deterioration of the macroeconomic stance of South Africa itself: economic growth stalled and current account deficit widened again. Consumer spending was restrained with the high household indebtedness, investment climate worsened with the wave of bloody strikes, and net export was still prone to J-curve effect despite the degree of the devaluation happened. But, in its turn, those problems are a mere reflection of the deep institutional misbalances inherent to the very model of the national economy. Saving rate is too low in South Africa. This leads not only to an insufficient investment, but also to trade deficits and overdependence on speculative capital inflows. Extremely high unemployment means that the country’s economic potential is substantially underutilized. Joblessness is generated, first and foremost, by the dualistic structure of the national entrepreneurship. Basic wages are being formed by way of a bargaining between big public and semi state companies, on the one hand, and trade unions associated with the ruling party, on the other. Such a system is biased towards protection of vested interests of those who earn money in capital-intensive industries. At the same time, these rates of wages are prohibitively high for a small business; so far private companies tend to avoid job creation. A new impulse to economic development is likely to emerge only through the government’s efforts to mitigate disproportions and to pursue an active industrial policy. National Development Plan adopted in 2012 is a practical step in that direction. But the growth of public investment is constrained by a necessity of fiscal austerity; as a result, the budget deficit remained too large in recent years. South African Reserve Bank will have to choose between a stimulation of economic growth with low interest rates, on the one hand, and a support of rand by tightening of monetary policy, on the other. This dilemma will greatly influence prices of securities and yields at South African financial markets.

scholarly journals I am/am I an African? A relational reading of Diaspora and Identity in South African Fiction by J.U. Jacobs

Literator ◽  
2017 ◽  
Vol 38 (1) ◽  
Author(s):  
Miki Flockemann
Keyword(s):  
South Africa ◽  
South African ◽  
Performing Arts ◽  
The Other ◽  
Important Addition ◽  
Recent Trends ◽  
The One ◽  
New Generation ◽  
Globalising World ◽  
Comprehensive Study

The publication of Diaspora and Identity in South African Fiction (2016) by J.U. Jacobs is a timely intervention, in that it is the first comprehensive study of South African fiction to sustain the argument that South African writing is always already diasporic. Although Jacobs’ diasporic framework undoubtedly serves as an important addition to the recent trends identified by literary scholars, his focus on 12 well-established writers (including Coetzee, Wicomb, Mda, Gordimer and Ndebele), highlights some of the gaps that need to be filled in a study of this kind. For instance, what about the younger generation of writers, including those from elsewhere in Africa who are writing about living in South Africa? How do they deal with what has been termed the new diaspora, with debates around Afropolitanism and the experiences of internal, inter-continental and trans-continental migrancy in an increasingly globalising world? Despite these shortcomings, Jacobs’ premise about the inevitably diasporic identifications that are narrativised in the 20 novels analysed here can provide a useful foundation for further scholarship on how the diasporic condition informs and is mediated in other texts. These, as I will show, range from works by a new generation of emerging writers on the one hand to the performing arts on the other hand.

Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

2021 ◽  
Vol 34 (1) ◽  
pp. 1-30
Author(s):  
Terrence R Carney
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
University Graduates ◽  
Judicial Process ◽  
South Africans ◽  
South African Police Service ◽  
South African Police ◽  
The One ◽  
Readability Level

Difficult text formulations, on the one hand, as well as poor linguistic skills and comprehension on the other, can severely hamper the communication effort of basic human rights during the judicial process. The rights entrenched in s 35 of the Constitution of South Africa (Act 108 of 1996), as they apply to individuals who are arrested, detained and accused, and read out by a member of the local South African Police Service (SAPS), are written in a legal register that can be too difficult for additional language speakers to understand. This begs the question of whether arrested, detained and accused individuals are fully aware of their rights and whether they can exercise these rights if they do not understand the language that expresses them. This article appraises the potential comprehensibility of the notice of rights (SAPS 14A), as provided to arrested, detained and accused individuals by the SAPS. The researcher’s assessments indicate that the text is pitched at an English readability level suited to university graduates and could be too difficult for South Africans with limited schooling and linguistic abilities to comprehend. A revision of SAPS 14A is offered as an illustration of a possible improvement to increase readability and, subsequently, better access to the mentioned rights.

Reservation of title in England and New Zealand

Legal Studies ◽  
1992 ◽  
Vol 12 (2) ◽  
pp. 195-209 ◽  
Author(s):  
Gerard McCormark
Keyword(s):  
New Zealand ◽  
Subject Matter ◽  
The Other ◽  
Other Hand ◽  
House Of Lords ◽  
The Subject ◽  
The One ◽  
Court Of Appeal

Reservations of title clauses have enjoyed mixed fortunes in recent times at the hands of the courts in Britain. On the one hand, the House of Lords has upheld the validity and effectiveness of an ‘all-liabilities’ reservation of title clause. On the other hand, claims on the part of a supplier to resale proceeds have been rejected in a string offirst instance decisions. Reservation of title has however been viewed more favourably as a phenomenon in New Zealand. In the leading New Zealand case Len Vidgen Ski and Leisure Ltd u Timam Marine Supplies Ltd. a tracing claim succeeded. Moreover in Coleman u Harvey the New Zealand Court of Appeal gave vent to the view that the title of the supplier is not necessarily lost when mixing of goods, which are the subject matter of a reservation of title clause, has occurred. There are now a series of more recent New Zealand decisions, some of them unreported, dealing with many aspects of reservation of title.

scholarly journals A SPRING WITHOUT WATER: THE CONUNDRUM OF ANTI-DUMPING DUTIES IN SOUTH AFRICAN LAW

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Clive Vinti
Keyword(s):  
South Africa ◽  
International Trade ◽  
Supreme Court ◽  
South African ◽  
Case Analysis ◽  
The Supreme Court ◽  
The Impact ◽  
Court Of Appeal

The Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), permits the imposition of anti-dumping duties for as long and to the extent necessary to counteract dumping which is causing injury subject to the proviso that they must be terminated after five years unless a sunset review has been initiated. Sunset review has the purpose of either permitting or terminating the continuation of an anti-dumping duty. This is significant because if the sunset review is not initiated prior to the expiry of the five year period, the anti-dumping duties will be terminated.Therefore, this places a greater emphasis on the determination of the precise date of commencement of the anti-dumping duties. This is because an incorrect determination of the date of imposition of the anti-dumping duty has obvious financial implications for the interested parties. To this end, the Supreme Court of Appeal in South Africa has delivered two salient judgments in this regard: firstly, in Progress Office Machines CC v SARS, and then more recently, in Association of Meat Importers v ITAC. These two cases hinge on the interpretation of the date of 'imposition' of definitive anti-dumping duties particularly where provisional measures are involved, which invariably determines the date of expiry of the duties as espoused by Regulations 38 and 53 of the International Trade Administration Commission Anti-Dumping Regulations.This paper contends that these two judgments are conflicting and riddled with inconsistencies. Secondly, the paper contends that the SCA has in the recent AMIE case, virtually rewritten its earlier judgment of Progress Office Machines. Lastly, the paper shows that the approach of South African courts on whether the Anti-Dumping Agreement is binding on South African law, is fraught with uncertainty and an ambivalence .The case analysis also reflects on the impact of the newly minted but yet to be implemented, Customs Duty Act, with a view to assess the impact of the new legislation on the issues currently plaguing the anti-dumping regime of South Africa. 

scholarly journals A Fresh Perspective on Historical Sexual Abuse: The Case of Hewitt v S 2017 1 SACR 309 (SCA)

2017 ◽  
Vol 20 ◽  
pp. 1-21
Author(s):  
Windell Nortje ◽  
Pieter Du Toit
Keyword(s):  
South Africa ◽  
Sexual Abuse ◽  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Sexual Offences ◽  
Sexual Crimes ◽  
The Supreme Court ◽  
Fresh Perspective ◽  
Court Of Appeal

Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries.     

scholarly journals INTRODUCING DECONSTRUCTIVE INTERSECTIONALITY: THE GENERAL JURISPRUDENTIAL RAGE AGAINST RAINBOW THEORY

2015 ◽  
Author(s):  
Tamryn Gorman
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Constitutional Court ◽  
Court Cases ◽  
Substantive Equality ◽  
Constant Tension ◽  
Formal Equality ◽  
The One ◽  
Constitutional Adjudication

Despite South Africa’s post-modern constitutional dispensation which, at first glance, seems to celebrate and entrench substantive equality — various judgements have been passed by the Constitutional Court where the Constitution was interpreted through a formal equalitarian lens. On the one hand, substantive equality recognises and celebrates our diversity and differences whereas formal equality, on the other hand, obsesses with the idea of sameness. This constant tension between substantive and formal equality is aptly portrayed by the term ‘rainbow jurisprudence’. This term was coined by Alfred Cockrell to explain a quasi-theory depicted by the newly born South African constitutional adjudication which was lacking in substantive reasoning (which I equate to substantive equality) and the absence of a rigorous jurisprudence. He goes so far as to assimilate the finding of genuine substantive reasoning within these judgements to the possibility of touching a rainbow — a mythical task which, although alluring, seems impossible. Thus, I have identified the problem that South Africa is still submerged in rainbow jurisprudence. This can be seen through various court cases that will be discussed below, ranging from cases that were clearly decided from a formal equalitarian perspective to those which depict a wolf in sheep’s clothing seemingly substantive judgements disguising the formal equality lurking beneath.

scholarly journals Hohepa Wi Neera: Native Title and the Privy Council Challenge

2004 ◽  
Vol 35 (1) ◽  
pp. 73
Author(s):  
John William Tate
Keyword(s):  
New Zealand ◽  
The Other ◽  
Privy Council ◽  
Native Title ◽  
Other Hand ◽  
Solicitor General ◽  
The One ◽  
Court Of Appeal

The case of Hohepa Wi Neera illustrates an unprecedented clash of judicial approaches to native title claims. On the one hand, the New Zealand Court of Appeal was determined to continue the line of reasoning most notably enshrined in Wi Parata v Bishop of Wellington. On the other hand, the Privy Council, in Nireaha Tamaki v Baker had partially overturned Wi Parata by insisting that native title fell within the jurisdiction of the courts, at least when prerogative powers were not involved. The author argues that in Hohepa Wi Neera, the Court of Appeal quite deliberately tried to avoid the implications of the Privy Council's decision. In doing so, it exhibited a marked "colonial consciousness" which it was prepared to defend even to the extent of open breach with the Privy Council. The 1912 case of Tamihana Korokai v Solicitor-General, however, showed the extent to which the Court of Appeal was capable of shedding that "colonial consciousness" and embracing the earlier Privy Council ruling. The author demonstrates that this apparent irony sheds light on our understanding of the earlier cases.

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