A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.

Obtaining redress (damages) for torture committed outside South Africa: A comment on Van Rensburg v Obiang (21748/2014) [2021] ZAWCHC 128 (18 June 2021)

In Van Rensburg v Obiang, the High Court (Western Cape Division) awarded the plaintiff damages for the torture, unlawful arrest, and detention to which the plaintiff was subjected by the respondent’s subordinates in Equatorial Guinea. However, the court does not clearly explain how the respondent was responsible for the applicant’s torture and the legal basis on which it made the order for damages. In this article, the author argues that the court’s order is debatable for the following reasons. The evidence before the court did not prove that the defendant had committed torture within the meaning of art. 1 of the UN Convention against Torture and sec. 3 of the Prevention and Combating of Torture of Persons Act; some of the acts attributed to the defendant as torture did not amount to torture; there was no legal basis on which the court based its order to award damages to the plaintiff for the torture committed abroad.

An overview of the sentencing regime for gang members under the Prevention of Organised Crime Act 121/1998 and the potential for restrorative justice

Sec. 10 of the Prevention of Organised Crime Act 121 of 1998 creates a sentencing regime for those found in contravention of the substantive gang-related offences under sec. 9. This contribution provides a brief overview of the sentencing options available when found guilty of one of these substantive offences, against the backdrop of the general principles of sentencing in South Africa. The potential role of restorative justice in gang-related cases is also considered.

Police officers’ discretion and its (in)adequacy as a safety valve against unnecessary arrest

The Supreme Court of Appeal has ended the recent uncertainty on whether there is a need for the fifth jurisdictional fact in the process of arrest. The result is that South African law is back at the well-known four jurisdictional facts that must be present before a lawful warrantless arrest may take place. This article assesses whether, after the demise of the fifth jurisdictional fact, police discretion can adequately protect the right to liberty. The discussion starts with a contextual background outlining the role of the jurisdictional facts and the emergence and demise of the fifth jurisdictional fact. This is followed by an outline of the legislative framework applicable to arrest, pointing out that the law bestows wide discretion on police officers in the exercise of their duties, including securing the court attendance of accused persons. Relying on relevant decided cases, it is submitted that the courts focus on the police discretion exercised at the point of arrest, not in the process preceding that stage (for example, the choice of method). The central submission is that, given that the only viable pre-court appearance protective mechanism against unnecessary arrests is the proper exercise of police discretion, focus on the exercise of discretion at the point of arrest is not the most prudent and/or effective approach in the quest to protect the right to liberty.

An assessment of sentencing approaches to persons convicted of white-collar crime in South Africa

Assessing court sentencing approaches to persons convicted of white-collar crime is a complex task. For the purposes of this article, this research task involved assessing the appropriateness of sentences imposed within the proportionality principle during the period 2016 to 2021 in South Africa. This further involved the empirical use of both qualitative and quantitative methodologies, in order to determine how commercial courts – in this case, the Bellville Commercial (Regional) Court – impose a sentence on white-collar criminals. The article establishes that, in South Africa, categories of white-collar crime such as corruption, racketeering, fraud and money laundering are increasingly reported by the media, independent institutions and government. There is a public perception that courts are generally lenient in sentencing white-collar offenders. This article aims to determine the appropriateness of a sentence, within the principle of proportionality, for white-collar criminals, in order to deter this type of crime.

Judicial probity and ethical standards: The Judicial Conduct Tribunal’s decision on Judge President John Hlope

This case note on the Judicial Conduct Tribunal’s (hereinafter, “the tribunal”) decision regarding Judge President John Hlophe (hereinafter, “Hlophe” for the sake of brevity) in April 2021 is prompted not only by the increasing attacks on the South African judiciary, but also by the moral force which underlies the rule of law and the independence of the judiciary as constitutional guarantees.

Warrantless search and seizure by SARS: a constitutional invasion of taxpayers’ privacy? – Part Two

Sec. 63 of the Tax Administration Act 28 of 2011 (TAA) grants officials of the South African Revenue Service (SARS) access to taxpayers’ private and confidential information by, first, searching a taxpayer’s person and premises without a warrant and, secondly, permitting the seizure of taxpayers’ possessions and communications. Part One of this article (see Journal for Juridical Science 2021(1)) argued that the TAA is a “law of general application” as envisaged by the so-called “limitation clause” contained in sec. 36(1) of the Constitution, 1996 and that, in terms of the threshold stage of analysis prescribed by this provision, the exercise of the powers conferred by sec. 63(1) and (4) limits a taxpayer’s constitutional right to privacy as entrenched in sec. 14 of the Constitution. In this Part Two of the article, it will be hypothesised that, although the search and seizure powers in sec. 63(1) and (4) of the TAA are not models of drafting with absolute clarity, they ought, in terms of the second stage of enquiry that is triggered by the findings in Part One, nevertheless to pass muster under sec. 36(1) of the Constitution, because of the justifiability of the limitation imposed on the right to privacy by these provisions.