The Cultural Defence in Criminal Law : South African Perspectives

2014 ◽  
Keyword(s):  
South African ◽  
Criminal Law

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.

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.

The Role of Error in Objecto in South African Criminal Law

2016 ◽  
Vol 80 (1) ◽  
pp. 45-63
Author(s):  
Kelly Phelps
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Individual Autonomy ◽  
Constitutional Court ◽  
Basic Principles ◽  
Subjective Approach ◽  
Logical Conclusion ◽  
A Charge

State v Pistorius provides an opportunity to consider error in objecto in the context of the broader approach to dolus in South African criminal law. For the last 60 years South Africa has taken a consistently subjective approach to assessing intention, evidenced through the courts’ rejection of versari, the presumption of intent and transferred malice. This upholds individual autonomy and assigns blame on a principled basis, thus it has achieved recognition from the Constitutional Court. By recognising foresight/knowledge of unlawfulness as a component of dolus, De Blom took subjectivity to its logical conclusion in 1977. Consequently, error in objecto likely only applies to dolus directus, is heavily influenced by the now defunct doctrine of transferred malice and has not become an entrenched principle in our law. It must thus yield to the basic principles of criminal law, including subjectivity and the putative defences flowing from De Blom. This was the manner in which it was correctly applied in State v Pistorius, although the reasoning was not evident in the judgment. Reviewing error in objecto in the broader scheme of dolus therefore shows that it is inaccurate to claim that the victim’s identity is always irrelevant to a charge of murder.

scholarly journals Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Charnelle Van der Bijl
Keyword(s):  
United States ◽  
South African ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Common Law ◽  
Strict Liability ◽  
The United States ◽  
Parental Responsibility ◽  
The Common

This contribution examines parental criminal responsibility for the delinquent acts of their children.  As South African law has been swayed by legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this issue has been addressed legislatively in both civil tort law and criminal law. The reasoning behind the implementation of specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability.  Parental responsibility laws have been challenged constitutionally over the years in the United States. Critics are of the view that such laws interfere with the rights of parents to raise their children and are a form of cruel punishment. Additional criticism raised is that parental responsibility laws impose strict liability on parents. Furthermore, some misgivings have been shed that many parents face challenges of being single parents or poverty, which will be exacerbated with the imposition of fines or imprisonment for the misconduct of their children. Despite these concerns and criticism, it will be shown that these laws have withstood the challenges over many decades, in the United States, in both the fields of the law of tort and criminal law. The common law of tort provides for the liability of parents for the conduct of their child. However, such conduct must be specifically attributable to a parent’s action or inaction. The purpose behind tort parental responsibility legislation focuses not only on providing monetary compensation by parents where their children are unable to do so, but also aims to encourage parents to provide better supervision of their children.  At the opposite end of the spectrum, the focus of statutory criminalisation tends to remain on criminal liability of parents for failing to protect others from their child, due to a failure in supervision and to prevent juvenile delinquency.  The South African law of delict is briefly contiguously considered in the context of parental responsibility laws. The concept of parental criminal responsibility laws under South African law is then considered and proffered as a useful mechanism to regulate misconduct of children currently falling outside the aegis of the criminal law.

scholarly journals INIURIA IN CYBERSPACE

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Frans E Marx
Keyword(s):  
South African ◽  
Criminal Law ◽  
Virtual Worlds ◽  
Real World ◽  
Economic Loss ◽  
Personality Rights ◽  
Unlawful Conduct

The purpose of this note is to investigate some real-world disputes that may arise as a result of unlawful conduct in virtual worlds. The note will firstly expand the background of virtual worlds and then sketch some scenarios, which could potentially lead to liability in law. The main focus will be on actionability in criminal law and delict in South African law. Special attention will be given to the question whether personality rights of members of virtual worlds can be infringed by, for instance, the rape of their avatars. The question whether liability for economic loss caused unlawfully to members of virtual worlds by other members of such worlds will also be addressed.

scholarly journals A note on sentencing practices for the offence of the unlawful possession of semi-automatic firearms

2020 ◽  
Vol 23 ◽  
pp. 1-19
Author(s):  
Pieter Gerhardus Du Toit
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Cumulative Effect ◽  
Violent Crimes ◽  
Judicial Decisions ◽  
High Courts ◽  
Serious Crime ◽  
The Supreme Court ◽  
Court Of Appeal

Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (hereinafter, the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm lead to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa’s successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semi-automatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders and terms of imprisonment in the range of seven to 10 years’ imprisonment is commonly imposed. In addition to the accused’s personal circumstances, one of the most important factors in deciding on an appropriate sentence are the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime.

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