The Suspension and Setting Aside of Delinquency and Probation Orders under the Companies Act 71 of 2008

A significant innovation of the Companies Act 71 of 2008 is contained in section 162. This provision empowers a court to declare a director delinquent or under probation on various grounds. The effect of a delinquency order is that a person is disqualified from being a director of a company, while being placed under probation means that he or she may not serve as a director except to the extent permitted by the order. A delinquency order may be unconditional and subsist for the director's lifetime, or it may be conditional and be effective for seven years or longer, as determined by the court. A probation order generally subsists for a period not exceeding five years, and may be subject to such conditions as the court considers appropriate. The harsh effects of these orders are alleviated by section 162(11) of the Companies Act. Under this provision, a delinquent director may apply to court after three years have elapsed, to suspend the delinquency order and to substitute it with a probation order, with or without conditions. A person who was placed under a probation order may apply to court after two years for the probation order to be set aside. This article examines the procedure under section 162(11) of the Companies Act for the suspension and setting aside of delinquency and probation orders. The factors that a court must take into account in exercising its discretion whether or not to grant the application, as set out in section 162(12) of the Companies Act, are also examined. This article draws on relevant jurisprudence as decided on the equivalent provisions in the corporate legislation in the United Kingdom and Australia. The method of interpretation used in these jurisdictions provides useful guidance on how best to apply and interpret sections 162(11) and (12) of the Companies Act. Recommendations are made regarding the proper approach to interpreting, applying and enhancing sections 162(11) and (12) of the Companies Act.

Consent to probation in England and Wales: How it was abolished, and why it matters

Much of probation theory and probation training in Britain during the 1980s emphasised the importance of ‘contracts’ or negotiated agreements between probation officers, probationers and the sentencing Court – for example, joint decision-making was central to the influential ‘non-treatment paradigm’ and its variants. However, the legal requirement of consent to a probation order was abolished in 1997, partly because it was seen as diminishing the authority of the Court. This article discusses the arguments and attitudes that lay behind abolition, and considers how far the absence of formal consent should be seen as making a difference in practice. Recent studies of supervision skills, therapeutic alliance, compliance with probation, sentencer involvement in supervision, and the role of individual choice in desistance from offending all point to the continuing importance of co-operation and joint ownership of the supervision agenda. Although these can exist in the absence of a formal requirement for consent, they have greater support and legitimacy when such a requirement is present. Finally, the article explores how official thinking and political gestures lead to decisions that are detached from the realities of practice, and discusses some of the current dangers that arise from this.

Yes, no, possibly, maybe: Community sanctions, consent and cooperation

This article explores the significance of consent to community sanctions and measures. The value of consent derives from the principle of autonomy and rights to freedom and dignity. While normally these are rights that should be upheld and defended, the question is complicated in the case of penal sanctions. The account goes on to discuss the necessary conditions for meaningful informed consent and to inquire into the extent to which these conditions apply to community sentences. The origin of consent to the probation order and other community penalties in England and Wales is outlined – the reason why it was originally expected and why it was eventually abolished. Yet even if consent is not formally required, there is reason to think that England and Wales is an example of a country where in practice consent is actively sought. The relationship between consent and compliance – and the distinct concept of active cooperation – is discussed. It is concluded that a formal expression of consent in Court has symbolic value, but does not resolve the challenge of trying to secure consent and cooperation that must persist throughout the duration of the community order.

De la comparution à la décision pénale, le profil judiciaire de plus de 1 500 femmes

The Elizabeth Fry Society of Montreal conducted a study aimed at describing the judicial profile of women defendants from their appearance to their sentencing. This article presents the principal results of this study which concerns more than 1 500 women who appeared, in 1987, before the Quebec Criminal Court, at the Court houses at Montreal and Longueuil. Whether more than half these women are under 30 years of age, that they have never been charged before, that they are charged on one court only and of crimes against property, that they plead guilty and receive a probation order, very often the course of women through the judicial process is far from being linear. Once caught up in the system of judicial surveillance, there seems to be a sort of vicious circle established, where the system feeds the system, where the demeaning of the system becomes the offence that keeps these women within the system.

Female homicide

The incidence, characteristics and patterns of female homicide are reviewed, with special reference to England and Wales. The male:female ratio for homicide offences (7.6) is similar to the ratio for other offences of violence. However, murder is almost exclusively committed by men, and in the 1980's the annual average of female murder convictions was only 6.5 per annum. By contrast, females relatively more often commit homicide offences related to mental disorder (diminished responsibility manslaughter and infanticide). Women have a better chance of acquittal of murder and are more likely to be dealt with by a Probation Order than imprisonment. About 80% of the victims of female homicide are family members; 40-45% kill their children and about one-third kill their spouse or lover. The patterns of female filicide and parricide are reviewed. Further research is required into patterns of spouse-murder.