scholarly journals THE PROPOSED LEGALIZATION OF PROSTITUTION IN SOUTH AFRICA – FRAMING THE DEBATE FROM A LIBERAL PERSPECTIVE

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Stephen Peté
Keyword(s):  
South Africa ◽  
South African ◽  
Sex Work ◽  
Criminal Law ◽  
Constitutional Democracy ◽  
Legal Moralism ◽  
Complex Issue ◽  
Liberal Ideology ◽  
Moral Choices ◽  
Liberal Perspective

The debates surrounding the issue of whether or not prostitution or sex work ought to be legal or illegal have a long and convoluted history, both in South Africa and abroad. This article seeks to provide greater clarity and focus to current debates on this complex issue, in particular from a liberal perspective. By examining certain of the main issues at stake for those committed to the broad tenets of liberal ideology, the article hopes to bring at least some measure of clarity and focus to a contentious set of theoretical and empirical questions. It is argued that, from a liberal perspective, to interfere with the freedom of each South African to make his or her own moral choices is to interfere with the very foundation of South Africa’s hard-won constitutional democracy. In order to convince those committed to truly liberal principles of the need for the criminal law to prohibit sex work, it must be shown that it causes either “harm” or “offence” to others. Liberals will accept neither the principle of “legal moralism” nor that of “legal paternalism” as legitimate reasons to criminalize sex work.

Reconsidering criminal law-based liability for corporations and directors in South Africa

2019 ◽  
Vol 26 (4) ◽  
pp. 1085-1094
Author(s):  
Herbert Kawadza
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Negative Impact ◽  
Criminal Liability ◽  
Annual Reports ◽  
Content Type ◽  
Criminal Sanctions ◽  
Fresh Perspective ◽  
African Context

Purpose It is recognised that the mere proscription of corporate offences is not adequate to deter misconduct or engender compliance. There is a need for the enforcement of the rules through robust culture-changing sanctions. The purpose of this paper is to demonstrate the inadequacies of criminal law liability in ensuring compliance with ethical corporate conduct in South Africa. Design/methodology/approach This paper is purely qualitative. For expository purposes, it draws from the Criminal Procedure Act, 51 of 1977 as well the corporate criminality enforcement trends and data from the National Prosecutions Agency’s annual reports to demonstrate that much as criminal liability is enshrined in a statute it has, however, not yielded the expected results. It situates the debate within the broader economic criminological scholarship. Findings This paper argues that even though the option of prosecuting corporations and directors is part of South African law, many corporate offences are not brought into the criminal justice system. Judging by its erratic imposition, criminal liability has failed to express the indignation and condemnation that are normally attached to criminal sanctions. Several reasons account for this. These include evidentiary, legal, technical and definitional complexities of some corporate offences, which lead to them being regarded as “unprosecutable crimes”. This has a negative impact on enforcement. Originality/value This paper is novel because it approaches the debate from a fresh perspective, economics and criminology. Not much scholarly attention has been devoted to analysing the efficacy of criminal sanctions in the South African context. This paper attempts to fill that gap.

scholarly journals Criminalising fabricated images of child pornography: a matter of harm or morality?

Legal Studies ◽  
2010 ◽  
Vol 30 (2) ◽  
pp. 230-256 ◽  
Author(s):  
Suzanne Ost
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Criminal Law ◽  
Child Pornography ◽  
Harm Principle ◽  
Legal Moralism ◽  
Liberal Perspective ◽  
The Harm Principle

This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.

scholarly journals The Continued Criminality of Selling Sex: A Trajectory of South African Sex Work Law Reform

2021 ◽  
pp. 1-23
Author(s):  
Amanda Spies
Keyword(s):  
South Africa ◽  
South African ◽  
Sex Work ◽  
Sex Workers ◽  
Legal Regulation ◽  
Law Reform ◽  
Constitutional Rights ◽  
The South ◽  
Sex Work Policy ◽  
Rights Discourse

Abstract This article explores the regulation of sex work in South Africa and follows the trajectory of the South African Law Reform Commission (SALRC) in investigating whether sex work should be decriminalized. The legal regulation of sex work is a hotly contested topic. South Africa currently criminalizes the selling and buying of sex, but policy reform has been on the cards since the SALRC launched its project on the topic in the early 2000s. As most sex work policy responses are grounded in feminist theory, the article analyses the main theoretical ideologies and questions the influence of these ideologies in structuring sex work law reform in the South African context. The author calls for a more inclusive understanding of feminism and sex work, and the need to acknowledge the importance of rights discourse in furthering political growth and protecting sex workers’ constitutional rights.

scholarly journals The impact of cross-boundary electoral demarcation disputes in South Africa after 1994: the case study of Moutse

2020 ◽  
Vol 19 (2) ◽  
pp. 75-96
Author(s):  
Beauty Vambe ◽  
Sipho Mantula
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Democracy ◽  
Community Members ◽  
State Institutions ◽  
Institutional Planning ◽  
Democratic Principles ◽  
The Impact ◽  
Administrative Boundary

The article investigates the impact of cross­boundary electoral demarcation disputes between the Mpumalanga and Limpopo provinces after 1994. The article further examines how the electoral demarcation disputes can be resolved by negotiating with the dissatisfied communities. Moutse is located within a community that straddles north­western Mpumalanga and southern Limpopo provinces in South Africa. In 2005 the community members of Moutse wards 5 and 6 were dissatisfied by the decision of the South African national government, Limpopo and Mpumalanga provincial governments for relocating them under a newly demarcated administrative boundary without hearing the views of the community. The article used community dialogues for its research. This approach is explained predominantly by qualitative and quantitative approaches to indicate processes of data collection, to explain the nature of the problem and explore the findings of communitybased research. The study reveals that violent disruptions and protests by community members can be avoided if community voices are taken into consideration. The article recommends that state institutions that support constitutional democracy need to show the administrative and political will to transform electoral demarcation challenges and implement effective democratic principles. In conclusion, advanced institutional planning and its transparent application must be emphasised.

scholarly journals Editorial

2017 ◽  
Vol 9 (2) ◽  
pp. 1
Author(s):  
Francois Venter
Keyword(s):  
South Africa ◽  
South African ◽  
Cape Town ◽  
The State ◽  
The Political ◽  
Constitutional Democracy ◽  
Political Dominance ◽  
South African Constitution ◽  
University Of Cape Town ◽  
The University

This second edition of 2006 offers an interesting range of topics, in this instance all covered by South African authors.In her analysis of the "institutions supporting constitutional democracy" established by the South African Constitution, Professor Christina Murray of the University of Cape Town argues that thethe institutions share the roles of providing a check on government and of contributing to transformation.  The newness of democracy, the great demands on the state and the political dominance of the governing party in South Africa are identified as the greatest challenges of the institutions discussed.

scholarly journals SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART ONE

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Stephen Peté ◽  
Sarah Pudifin
Keyword(s):  
South Africa ◽  
South African ◽  
Public Art ◽  
African State ◽  
Public Works ◽  
Constitutional Democracy ◽  
The Law ◽  
Case Part ◽  
The Right ◽  
Public Bodies

Politics, art and the law make uncomfortable bedfellows. The commissioning of public art by public bodies, in particular, often gives rise to bitter controversy. As a recent ongoing public spat over the suitability of a sculpture of three large elephants in the Durban area attests, South Africa is not immune from such controversy. Using the facts of this particular case as a lens, this article seeks to address the following central question: In the context of post-apartheid South Africa, when public works of art are commissioned by public bodies, to what extent do state officials have the right to involve themselves and/or interfere in the process? After outlining salient details of the Durban elephant sculpture case, part one of this article seeks to situate the central issues raised in their historical and ideological context. It then proceeds to address the issue of the “proper” relationship to be maintained between state officialsand public art within a constitutional democracy such as South Africa. A strong case is made that the values of tolerance, openness and diversity should be central in setting the broad parameters of the present debate on this issue. In particular, it is argued that the South African state should adopt a “hands-off” and “arms-length” approach when it comes to the funding and commissioning of public art. Part one of this article concludes with a discussion on the legitimate limits to free artistic expression. 

Criminological Science and the Criminal Law on the Colonial Periphery: Perception, Fantasy, and Realities in South Africa, 1900-1930

1995 ◽  
Vol 20 (04) ◽  
pp. 911-939 ◽  
Author(s):  
Martin Chanock
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
South African ◽  
Criminal Law ◽  
Sense Of Self ◽  
African State ◽  
Early Years ◽  
The South ◽  
Legal Doctrine ◽  
Self And Other

This article, by framing criminology and criminal law together, suggests that in the early years of the South African state both bodies of discourse served to evade reality and to construct a sense of self and other as a part of the development of the administration of South African criminal law. It considers the derivation of South African criminology from contemporary metropolitan formulations. South African legal doctrine and practice likewise depended on extra-South African sources. These imported discourses provided lenses through which a descriptive confrontation with the realities of the processes of criminalization, and the administration of criminal justice could be avoided precisely by hose “expert” in these fields. Instead, science and law, far from being pragmatic disciplines, provided the means by which to fantasize about the nature of white justice and black criminality.

South African Legal Culture and its Dis/Empowerment Paradox

2021 ◽  
Author(s):  
Sindiso Mnisi Weeks
Keyword(s):  
South Africa ◽  
South African ◽  
Legal Culture ◽  
Constitutional Democracy ◽  
Rights Protection ◽  
Historical View ◽  
Socioeconomic Rights ◽  
Socioeconomic Transformation ◽  
The World ◽  
Before And After

Twenty-five years since becoming a constitutional democracy, South Africa presents the perplexing paradox of arguably having the most progressive constitution in the world, marked by full-throated socioeconomic rights protection, while also being the most unequal country in the world. This chapter makes the argument that this alarming paradox can be at least partly understood in terms of a ‘dis/empowerment paradox’ endemic to South Africa’s legal culture. It takes a historical view of the formation and impact of South African legal culture and the various levels and ways in which the dis/empowerment paradox argued for has been, and continues to be, characteristic thereof. The chapter traces the contributions of the judiciary to shaping the country’s legally pluralistic culture over the course of history and into the present. It ultimately points to judicial complicity in restraining the full realization of freedom and justice under the law—both before and after the dawn of South Africa’s modern-day Constitution—by under-utilizing law’s potential for liberation. Tracing this historical arc is aimed at helping legal, anthropological, and wider readers not familiar with South Africa’s particular circumstances to better understand the concluding argument: namely, that the purported solution to South Africa’s problems described as ‘transformative constitutionalism’ presents notable pitfalls. While the chapter does not argue that the judiciary is solely, or even mainly, responsible for the dis/empowerment paradox of law, it does argue that the judiciary is somewhat complicit in the limited socioeconomic transformation seen subsequent to adoption of the country’s progressive Constitution.

Sex, Work, and Criminalization

2020 ◽  
pp. 173-191
Author(s):  
Michelle Madden Dempsey
Keyword(s):  
Sex Work ◽  
Criminal Law ◽  
Harm Principle ◽  
Commercial Sex ◽  
Legal Moralism ◽  
The Third ◽  
Legal Response ◽  
State Coercion

This chapter provides a philosophical examination of the various dimensions of commercial sex as a form of work. It then offers perspectives on the legitimate role of the criminal law in regulating commercial sex, based upon three limiting principles. The first is a principle of ‘minimalism’ such that the criminal law should only be used as a last resort. The second is a principle of ‘modest legal moralism’ such that the criminal law should be reserved as a legal response to public wrongs. Finally, the third principle is a ‘presumption of non-interference’ based in the liberal harm principle, so that state coercion is limited to situations of direct or indirect harm. Given these three limiting principles, the chapter asks if the criminal law has a legitimate role in regulating, restricting, or prohibiting sex work.

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