scholarly journals OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)

Obiter ◽  
2021 ◽  
Vol 39 (3) ◽  
Author(s):  
Shannon Hoctor
Keyword(s):  
Common Law ◽  
Causal Link ◽  
Reasonable Doubt ◽  
Constitutional Court ◽  
Presumption Of Innocence ◽  
Mob Violence ◽  
Common Purpose ◽  
The Common ◽  
A Charge ◽  
Harmful Result

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented. But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.  

Child Protection through the Criminal Law

2020 ◽  
pp. 85-114
Author(s):  
Kenneth McK. Norrie
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Child Protection ◽  
Adult Population ◽  
Common Law ◽  
Legal Basis ◽  
Sexual Offences ◽  
The Common ◽  
The Law ◽  
A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

Is the Prisoner's Character Indivisible?

1953 ◽  
Vol 11 (3) ◽  
pp. 377-394 ◽  
Author(s):  
R. N. Gooderson
Keyword(s):  
Common Law ◽  
The Other ◽  
Sexual Morality ◽  
The Common ◽  
The One ◽  
A Charge

“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.

scholarly journals PROTECTING THE VULNERABLE IN SOUTH AFRICA: PROHIBITION OF CORPORAL PUNISHMENT IN THE PRIVATE SPHERE

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Lizelle Ramaccio Calvino
Keyword(s):  
South Africa ◽  
Corporal Punishment ◽  
Common Law ◽  
Physical Punishment ◽  
Regulatory Framework ◽  
Private Sphere ◽  
Constitutional Court ◽  
Court Ruling ◽  
Legislative Framework ◽  
The Common

On 18 September 2019, the Constitutional Court confirmed that the common-law defence of “reasonable and moderate chastisement” is unconstitutional as it unjustifiably violates sections 10 and 12(1)(c) of the Constitution of the Republic of South Africa, 1996. As a result, parents are no longer permitted to punish their child at home by way of inflicting physical punishment behind a facade of discipline. Despite the aforesaid, it should be noted that corporal punishment in the private sphere is not explicitly prohibited by South African legislation. In addition, South Africa’s legislative system lacks an appropriate regulatory framework to administer the anticipated proliferation of assault cases against parents. It is against this backdrop that this article first analyses the current legislative framework regulating the protection of children from physical punishment, and then follows with a succinct overview of the Constitutional Court ruling. The article assesses whether the mere repeal of the common-law defence of “reasonable and moderate” chastisement will be sufficient to eradicate corporal punishment in the private sphere, and if not, whether legislative prohibition and/or other interceding strategies will be required to give effect to the objective of the Constitutional Court ruling. In this regard, by way of comparative research, the legislative framework adopted by Sweden, being the first country in the world to prohibit all forms of corporate punishment of children is evaluated. Lastly, recommendations are made for the incorporation of practical steps, including possible legislative measures, to establish a regulatory framework from a children’s rights perspective to prohibit corporal punishment in the private sphere. Accordingly, for purposes of analysis and consideration, a qualitative approach is applied for purposes of the research. Primary sources such as the Constitution, case law, legislation, governmental documents, statistical data and research reports are consulted in conjunction with journal articles and textbooks.

A Sketch of the Off ences Committed under the Provoked Temporary Insanity in Common Law Countries

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 158-166
Keyword(s):  
Common Law ◽  
Legal Regulation ◽  
Causal Link ◽  
Theory And Practice ◽  
Law System ◽  
Starting Point ◽  
State Of Mind ◽  
Actus Reus ◽  
The Common ◽  
Temporary Insanity

● In common law countries, which as a rule do not have codified criminal legislation, or where it exists, offences committed under the provoked temporary insanity are not treated as a separate type of wrongdoing (delictum sui generis). Criminal theory and practice considers them as a particular example of privileged homicide related to manslaughter but not the murder. ● Actus reus of offences committed under the provoked temporary insanity (as a kind of privileged homicide) consists of following objective elements: a) conduct, result (i.e. death), causal link between them and any other facultative element; b) provocative behavior committed by the victim; c) causal link between the victim’s behavior and the perpetrators provoked conduct (double causation). ● Mens rea of the offences in question pertains to both subjective elements characteristic to manslaughter: a) recklessness and b) extreme temporary emotional excitement, which might be either explained or justified on rationale basis. The verification of rationality depends on the “reasonable man” standard and how would he behave in the same situation. ● As a starting point, for the classification of mental element traditionally is applied M’Naghten case. Although it focuses on the perpetrator’s capacity to understand wrongfulness of conduct, to be responsible for his crimes, it can be directly applied to the offences, committed under the provoked temporary insanity considered as a serious situational disorder of activity of psychic or state of mind. ● Legal regulation of an offences committed under the provoked temporary insanity is entirely differently constructed within the common law countries in comparison with other legal systems, including Georgian Penal Code. The common law approach is hard to be considered as a successful one, as it is not always efficient in terms of theoretical and practical considerations. ● The main shortcoming of common law system is related to its ambiguity, derived from abundance of value judgments, tests, fictions and criteria.

Public Policy in Family Contracts, Part II: Antenuptial Contracts

2021 ◽  
Vol 32 (1) ◽  
pp. 3-23
Author(s):  
Elsje Bonthuys
Keyword(s):  
Public Policy ◽  
Gender Equality ◽  
Bargaining Power ◽  
Common Law ◽  
Third Parties ◽  
Constitutional Court ◽  
Judicial Discretion ◽  
The Public ◽  
Property System ◽  
The Common

This, the second part of an article on public policy in contracts between family members, focuses on legality in antenuptial contracts, particularly those which exclude all forms of sharing between spouses. The Matrimonial Property Act 88 of 1984 is now 35 years old and, apart from writing, it neither requires formalities to ensure that prospective spouses who enter into antenuptial contracts fully appreciate the consequences of their agreements, nor does it guarantee that the agreed upon property system is fair to both spouses. Instead, the focus is upon protecting the interests of third parties and creditors. The common-law principle of immutability makes it very onerous for parties to change the matrimonial property consequences during their marriage and, because the judicial discretion to order redistribution of benefits at divorce is limited to marriages concluded before the implementation of the Matrimonial Property Act, enforcement of antenuptial contracts at the termination of the marriage can lead to grossly unfair results. This unfairness has implications for gender equality, both because of gendered disparities in bargaining power at the conclusion of antenuptial contracts and legislation which limits the courts’ ability to deviate from contracts which mostly favour men, while retaining a discretion to deviate from contracts which tend to favour women. This article argues that the second leg of the public policy test, as articulated by the Constitutional Court in Barkhuizen v Napier can remedy the inadequacies in the statutory and common law by allowing the courts to consider inequalities in bargaining power and unfairness at the time of the enforcement of antenuptial contracts, in effect overriding the principle of immutability and creating a residual judicial discretion not to enforce an antenuptial contract.

scholarly journals The best of both worlds? some reflections on the interaction between the common law and the Bill of rights in our new constitution

2017 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Kate J O'Regan
Keyword(s):  
South African ◽  
Judicial Review ◽  
Common Law ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
Organic System ◽  
The Common ◽  
South African Constitution ◽  
The Relationship ◽  
Do So

The relationship between the Bill of Rights in the South African Constitution of 1996 and the common law is analyzed in this paper. "Common law" is understood broadly to include not only the Roman-Dutch law, but also the wide variety of legal sources and traditions which make up South African law, including African tradition, Muslim practice and the English law heritage.Firstly an exposition of the chief characteristics of the hybrid system of South African common law is given. It is shown that the common law is not codified; that it is a living and organic system of law constantly under legislative and judicial review; that its sources vary from judicial precedent to civilian authorities, English, indigenous customary and Muslim law; that the style of litigation and adjudication is English rather than Continental in Character and that when a common law rule is modified, it is done retrospectively in conflict with principles of legal certainty.Secondly the chief constitutional provisions relating to the relationship between the Constitution and the common law are considered. The supremacy clause (section 2) renders a common law rule which is inconsistent with the Constitution invalid from the date of the Constitution unless a court gives a different ruling in accordance with justice and equity. Courts have the inherent power to develop the common law, but the Constitutional Court may do so only in constitutional matters. Two forms of constitutional normative effects may be distinguished: direct (as in sections 2 and 8(1)) and indirect (as in section 39(2)). In terms of the latter the spirit, purport and objects of the Bill of Rights are to guide the development of the common law.Thirdly the interaction between the common law and the Constitution is thoroughly explored with reference to common law rules that are in conflict with the Constitution as well as where the common law already provides protection for the rights provided by the Bill of Rights. These matters are explored with reference to a number of recent judgments of the Constitutional Court, in some of which the common law was effectively developed.It is concluded that the firm normative thrust of the Constitution may well prove to be a rich source of principle for the development of the common law and that the flexibility of the common law may facilitate a cross-pollination between it and the Constitution.

scholarly journals PRESENCE AS A BASIS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT SOUNDING IN MONEY: THE “REAL AND SUBSTANTIAL CONNECTION” TEST CONSIDERED

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
GMN Xaba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Constitutional Court ◽  
Natural Justice ◽  
Recognition And Enforcement ◽  
Mere Presence ◽  
The Common ◽  
Foreign Judgment ◽  
Academic Debate

A somewhat contested basis of international competence in the recognition and enforcement of foreign judgments in South Africa is mere presence. Over the years, an academic debate has raged in South Africa over mere presence as a basis of jurisdiction for the enforcement of foreign judgments sounding in money. A recent decision by the Constitutional Court makes the topic worth revisiting.Practical circumstances, social and political considerations as well as natural justice inevitably call for the recognition and enforcement of foreign judgments. As Forsyth aptly puts it “[a] plaintiff may sue in one country and hear with pleasure judgment given in his favour, then discover, to his dismay, that the defendant, with his assets, has absconded to another country”. In such a situation, the judgment has become brutum fulmen in the court which pronounced it and the plaintiff is placed in a grossly prejudicial position. However, because of widely accepted values and principles, legal systems of the world recognize and appreciate that a judgment rendered by the courts of one country may be enforced elsewhere, provided certain conditions are satisfied.Under South African common law one of the conditions for the enforcement of foreign judgments is that the court which pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. (In Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) 1037B the court stated that the mere fact that the foreign court may have had jurisdiction under its own laws, is not conclusive. Instead, the question of jurisdiction has to be determined in the light of the principles of our law on the jurisdiction of foreign courts. Other requirements for recognition and enforcement are that (i) the foreign judgment must be final and conclusive in its effect and not have become superannuated; (ii) the recognition and enforcement of the judgment by South African courts should not be contrary to public policy; (iii) the foreign judgment should not have been obtained by fraudulent means; (iv) the judgment must not involve the enforcement of a penal or revenue law of the foreign state; and (v) the enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended. See Jones v Krok 1995 (1) SA 667 (AD) 685B−D.) This note is concerned only with the requirement that the foreign court that pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. The other four requirements are outside the scope of this paper and will not be discussed. It appears that the requirement that the foreign court must have had jurisdiction is a tenet central to the common law world. This requirement is a concept sui generis which is not affected by the internal jurisdiction rules of the foreign court, nor by the internal jurisdiction rules of the South African courts. Under South African common law there are, at least, two grounds which have been established with absolute clarity, that clothe a foreign court with international competence.

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