scholarly journals SENTENCING THE ELDERLY – AN ACT OF MERCY OR DISCRIMINATION? S v Phillips (unreported, DCLD), case no CC141/08

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Marita Carnelley ◽  
Shannon Hoctor
Keyword(s):  
South African ◽  
Old Age ◽  
Criminal Liability ◽  
The Elderly ◽  
Case Law ◽  
Criminal Courts ◽  
The South ◽  
Mitigating Factors ◽  
Mitigating Factor ◽  
Dutch History

In 2008, the authors’ note on advanced age as a mitigating factor in the South African criminal courts set out the Roman-Dutch history and the South African case law with regard to this issue. Brief reference was made to the position of the elderly offender in the Zimbabwean, English and Australian jurisdictions. The aim of this note is not to repeat what was said before, but to provide a wider perspective on the pertinent issues relating to sentencing the elderly (a contested term, but for present purposes referring to offenders over the age of 60), especially the concept of mercy. It should be reiterated that old age does not exclude criminal liability, but it can serve as one of many mitigating factors during sentencing although it is not a bar to imprisonment. The case of S v Phillips is no exception. The structure of this note is the following: it commences with a discussion of the Phillips judgment and to place it within a general problematic sentencing framework vis-a-vis the elderly. The concept of mercy is then examined in light of recent Commonwealth jurisprudence; whereafter parallels are drawn between the sentencing of a battered wife and the sentencing of a battered geriatric. The note concludes with a brief mention of the post-sentencing options available to an offender in the form of mercy and  as well as parole. 

Voluntary Withdrawal in the Context of Attempt – A Defence?

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 148-161
Author(s):  
Shannon Hoctor
Keyword(s):  
South African ◽  
Criminal Liability ◽  
Common Law ◽  
Good Reason ◽  
Case Law ◽  
Current Case ◽  
Voluntary Withdrawal ◽  
Alternative Approach ◽  
The Moment ◽  
Mitigating Factor

Once a crime has been committed, full repentance and restoration do not have any bearing on liability, but may be taken into account in mitigation of sentence. On the other hand, there is no question of criminal liability ensuing for an attempt at a crime if there is a withdrawal from the envisaged crime while still in the stage of preparation, and before, in South African law, reaching the watershed moment of the “commencement of the consummation”. However, what occurs between the moment when the attempt begins, and the moment when the crime has been completed, where there has been a withdrawal from the criminal purpose, is more contested terrain. The disagreement does not apparently arise in the South African case law, where the few judgments that refer to this question have consistently held that where the accused withdraws after the commencement of the consummation of the crime, there will be attempt liability and, at best, the accused may rely on the abandonment as a mitigating factor in sentencing. However, as is discussed, prominent South African academic commentators, along with comparative sources in both the civil-law and common-law jurisdictions, demur from such an “unyielding analysis”, and would regard such withdrawal as giving rise to a defence to criminal liability. Which approach ought to be applied in South African law?  The question may be posed as to how to categorise a defence of voluntary withdrawal? It is neither a justification ground nor a ground excluding fault, but rather a ground excluding punishment. The uniqueness of the defence is demonstrated in that the accused has already met all the requirements for liability, and thus it is not an intending criminal, but an actual criminal who is being considered. This is at least true of the common-law approach (also adopted by South African law), where a two-stage approach is applied to the trial, relating first to establishing criminal liability and followed, if guilt is so established, by an inquiry into sentence. At the outset, it may be stated that the view that is taken in the discussion that follows is that there is no good reason to treat voluntary abandonment as a special defence. As Yaffe has stated, to grant a defence on the basis of abandonment is to mistake the absence of a reason to issue a particular sanction rather than a lower one for a sufficient reason to issue no sanction at all.In the discussion that follows, the current case law is examined, whereafter the alternative approach contended for by some academic writers (and used in other jurisdictions) is discussed; the arguments for and against a renunciation defence are set out, before these aspects are drawn together in a final concluding analysis.

scholarly journals Does money empower the elderly? Evidence from the Agincourt demographic surveillance site, South Africa1

2007 ◽  
Vol 35 (69_suppl) ◽  
pp. 157-164 ◽  
Author(s):  
Anne Case ◽  
Alicia Menendez
Keyword(s):  
South African ◽  
Old Age ◽  
The Elderly ◽  
Social Pension ◽  
Alternative Means ◽  
Health And Development ◽  
Adults And Children ◽  
Socioeconomic Data ◽  
The Impact ◽  
To Receive

Aims: To quantify the impact of the South African old age (social) pension on outcomes for pensioners and the prime-aged adults and children who live with them, and to examine alternative means by which pensions affect household outcomes. Methods: We collected socioeconomic data on 290 households in the Agincourt demographic surveillance area (DSA), stratifying our sample on the presence of a household member age-eligible for the old-age pension (women aged 60 and older, men aged 65 and older). Results: The presence of a pensioner significantly reduces household reports that adults and, separately, children missed meals because there was not enough money for food. In addition, girls are significantly more likely to be enrolled in school if they are living with a pensioner, an effect that is driven entirely by living with a female pensioner. Our results are consistent with a model in which pensioners have a greater say in household functioning once they begin to receive their pensions. Conclusions: We find a program targeted toward the elderly plays a significant role in children's health and development.

scholarly journals THE ROLE OF REMORSE IN SENTENCING

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Pieter du Toit
Keyword(s):  
Supreme Court ◽  
South African ◽  
Deterrent Effect ◽  
The South ◽  
The Supreme Court ◽  
Mitigating Factor ◽  
Court Of Appeal

It has become an established feature of the South African sentencing practice to consider the level of remorse displayed by the accused. Genuine contrition or remorse is generally regarded as a mitigating factor whilst the absence thereof is considered to be an aggravating factor. Our courts link the presence of remorse with the prospect of the rehabilitation of the offender. In S v Seegers (1970 (2) SA 506 (A) 512G–H) Rumpff JA held that remorse, as an indication that the offence will not be committed again, is an important consideration, in suitable cases, when the deterrent effect of a sentence on the accused is considered. This note considers the meaning of “remorse” in the eyes of our courts, the approach of South African courts (in particular the Supreme Court of Appeal) to the role of remorse in sentencing, as well as the question whether the presence or absence of remorse can truly be determined by a court.

scholarly journals PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ

2017 ◽  
Vol 3 (1) ◽  
pp. 139
Author(s):  
Rafał Mańko
Keyword(s):  
South African ◽  
Legal System ◽  
Case Law ◽  
The Other ◽  
Customary Law ◽  
Roman Law ◽  
The South ◽  
Cape Of Good Hope ◽  
Ius Commune ◽  
The Republic

ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions. 

scholarly journals The South African pension system

1998 ◽  
Vol 18 (6) ◽  
pp. 713-719 ◽  
Author(s):  
Valerie Møller
Keyword(s):  
South Africa ◽  
South African ◽  
Old Age ◽  
Security Policy ◽  
Pension System ◽  
Real Income ◽  
The South ◽  
Old Age Security ◽  
Social Pension ◽  
African Journal

A. Sagner. 1998. The 1944 Pension Laws Amendment Bill: old-age security policy in South Africa in historical perspective, ca. 1920–1960. Southern African Journal of Gerontology7, 1, 10–14.S. van der Berg. 1998. Ageing, public finance and social security in South Africa. Southern African Journal of Gerontology7, 1, 3–9.The latest issue of Southern African Journal of Gerontology traces the origins of the South African social pensions system and addresses contemporary issues. In her editorial, Monica Ferreira (1998) notes that South Africa is one of only two countries in Africa that operates a social old-age system. Although the value of the South African social pension system is low in terms of real income (R490 in July 1998 – approximately US$100), the pension is generous in comparison with other developing countries. The take-up rate of the pension is virtually 90 per cent in the case of Africans, who historically were the most disadvantaged group under apartheid.

Protection of shareholders class rights in company law

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Anthony Nwafor
Keyword(s):  
South African ◽  
Case Law ◽  
Company Law ◽  
The South ◽  
Content Type ◽  
The Law ◽  
The Uk ◽  
Class Rights ◽  
A Company ◽  
Business Challenges

Purpose A company that is registered with share capital may issue different classes of shares and may confer rights on members, which place them in different classes in the company’s organisational structure. This paper is concerned with the propensity for encroachment on such vested class rights as companies strive to wriggle out of business challenges spawn by the COVID-19 pandemic. The purpose of this study is to ascertain the extent of protection that the law accords to the different classes of shareholders and members in a company especially when the company seeks to vary the vested class rights. Design/methodology/approach A doctrinal methodology, which relies on existing literature, case law and statutory instruments, is adopted to explore the nature of class rights and the adequacies of the remedial measures availed by statute to the aggrieved bearers of class rights in the context of the South African Companies Act 71 of 2008 with inferences drawn from the UK companies statute and case law. Findings The findings indicate that accessing the remedies available to aggrieved shareholders under the relevant statutory provisions are fraught with conditionality, which could make them elusive to those who may seek to rely on such provisions to vindicate any encroachment on their class rights. Practical implications The paper embodies cogent information on the interpretation and application of the relevant statutory provisions geared at the protection of shareholders class rights, which should serve as guides to companies and the courts in dealing with matters that affect the vested class rights of shareholders and members of a company. Originality/value The paper shows that protections offered to classes of shareholders under the law can also be extended to classes of members who are not necessarily shareholders, and that shareholders who seek to vindicate their class rights may conveniently rely on Section 163 that provides for unfair prejudice remedy to avoid the onerous conditions under Section 164 of the South African Companies Act 71 of 2008, which directly deals with class rights.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

Corporate Criminal Liability in South Africa: The Need to Look Beyond Vicarious Liability

2011 ◽  
Vol 55 (1) ◽  
pp. 86-104 ◽  
Author(s):  
Constantine Ntsanyu Nana
Keyword(s):  
South Africa ◽  
Board Of Directors ◽  
South African ◽  
Criminal Liability ◽  
The South ◽  
Vicarious Liability ◽  
Substantial Modification ◽  
The Board Of Directors ◽  
Distinct Person ◽  
Corporate Criminal Liability

AbstractCorporate criminal liability is a problematic concept, especially where it is based on an exceptionable principle such as vicarious liability. This is the case with the South African model. This article seeks to demonstrate that this model requires substantial modification because it compels the court to adopt the incoherent exercise of holding a corporation (which is a distinct person) liable for the intentional act (crime) of any of its agents, whether or not there is criminal intention on the corporation's part and whether or not it was aware of, or could have prevented the commission of the offence. It is submitted that it is more appropriate to hold a corporation liable only where it has been established that the course of conduct that resulted in the offence was encouraged or tolerated by persons who embody the corporation (usually sufficiently empowered managers or members of the board of directors).

scholarly journals Being treated like ‘waste’ during the ‘golden years’: Practical-theological perspectives

2014 ◽  
Vol 70 (2) ◽  
Author(s):  
Petria M. Theron
Keyword(s):  
Older People ◽  
South African ◽  
Older Persons ◽  
Elder Abuse ◽  
Well Being ◽  
The Elderly ◽  
The South ◽  
The Status ◽  
African Context ◽  
Practical Theological

The South African Government published the Older Persons Act no. 13 of 2006. The objectives of the Act are inter alia to maintain and promote the status, well-being, safety and security of older persons, to maintain and protect their rights and to combat abuse of older persons. This act is indispensable, as the elderly (people of 65 and older) form a growing segment of the South African population (4.767% in 1996 − 5.019% in 2011). They are in many regards extremely vulnerable, as they often face negative views regarding older people, experience discrimination, abuse, neglect and exploitation. Many atrocities are committed against them and one hears horror stories of older people who are abused and/or neglected by their own children and/or other people. One could almost say that these people, during their so-called ‘golden years’, are treated like ‘human waste’. I will investigate this phenomenon and attempt to interpret it within the South African context. I will then identify certain biblical guidelines to orientate one’s attitude towards old age and the elderly. To conclude, I will propose strategies to prevent elder abuse and restore human dignity to them.

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