Hate crime based on disability in South Africa: Lessons for law reform

When contemplating whether to introduce disability hate crime as a new substantive offence or as a penalty enhancement of existing crimes, legislators should consider the peculiarities of reporting, investigating and prosecuting hate crimes perpetrated against disabled people. This article argues that existing laws on sexual offences, domestic violence, harassment, and unfair discrimination should be strengthened, and research should be conducted to identify the appropriate initiatives to prevent and attend to disability hate crime by and with persons with disabilities. Creating a substantive hate crime based on disability has symbolic value, but should only be considered if the existing challenges to full and meaningful participation by persons with disabilities in investigative and court proceedings are addressed through appropriate procedural accommodations.

Reversing the ‘syndrome of secrecy’: Peremptory reporting obligations in cases of child abuse and neglect

Mandatory reporting laws are a controversial mechanism that require members of particular occupations to report cases of serious child maltreatment that they encounter in the course of their work to welfare or law enforcement agencies. In April 2019 a video went viral in which a woman filmed her colleague beating toddlers at a crèche in Gauteng. The crèche was closed, and arrests were made, including of the videographer. Given extent of violence and abuse against South African children, this paper investigates whether South African law adequately provides for the liability of those compelled to report child abuse but who fail to do so, why mandated reporters fail to report abuse, and how South Africa’s mandatory reporting rules should be amended to better serve their purpose.

On the record - Interview with Shaun Shelly, Researcher at the University of Pretoria and the Policy, Advocacy and Human Rights lead at TB HIV Care, South Africa

In November 2020 Anine Kriegler interviewed Shaun Shelly about recent developments in South African Drug Policy in the wake of the 2018 Constitutional Court judgment decriminalising personal possession of cannabis, and the subsequent Cannabis for Private Purposes Bill. Shaun is a researcher at the University of Pretoria Department of Family Medicine where he is part of the team implementing a community oriented primary care approach to address drug use in the City of Tshwane. He is the founder of the South African Drug Policy Week and is the drug policy lead at TB HIV Care, a non-profit organisation that works to prevent, find, and treat TB, HIV, and other major diseases by targeting interventions to address the needs of populations at risk, such as inmates, sex workers, and people who inject drugs. Shaun is a founding member and chair of the South African Network of People Who Use Drugs and the former Deputy Secretary of the United Nations Vienna NGO Committee on Narcotic Drugs. He sits on various other national and international task teams and advisory boards on drugs. Anine is a board member of the South African Drug Policy Initiative, a voluntary association that aims to reform South African drug laws, and which submitted an objection to the Bill.

Reversing the 'syndrome of secrecy': Peremptory reporting obligations in cases of child abuse and neglect

ABSTRACT Mandatory reporting laws are a controversial mechanism that require members of particular occupations to report cases of serious child maltreatment that they encounter in the course of their work to welfare or law enforcement agencies. In April 2019 a video went viral in which a woman filmed her colleague beating toddlers at a crèche in Gauteng. The crèche was closed, and arrests were made, including of the videographer. Given extent of violence and abuse against South African children, this paper investigates whether South African law adequately provides for the liability of those compelled to report child abuse but who fail to do so, why mandated reporters fail to report abuse, and how South Africa's mandatory reporting rules should be amended to better serve their purpose.

Equitable allocation of police human resources: Social Justice Coalition and Others v Minister of Police and Others

At the end of 2018, the Western Cape High Court handed down a ground-breaking judgment in the case of Social Justice Coalition and Others v Minister of Police and Others. The court held that the distribution of police personnel in the Western Cape unfairly discriminated against black and poor people on the basis of race and poverty. As the first case in South Africa recognising poverty as a discrete ground of discrimination, the judgment marks a significant development in the country’s equality rights jurisprudence. In addition, the court’s recognition that police distribution in the Western Cape is unfairly discriminatory has profound implications for the system of allocating police resources in that province, and potentially across the country. In this case note I summarise the key issues in the case and offer an analysis of the court’s approach, arguing that while the case is to be lauded for its recognition of poverty as a ground of discrimination there are also some missed opportunities. Most significantly, the practical impact of the judgment has yet to be determined as the court limited its order to declaratory relief, requiring the parties to return to argue on the further practical remedy that should follow.

Poaching of marine living resources: Can the tide be turned?

Certain marine living resources of South Africa are under severe threat from international organised crime syndicates in conjunction with local fishers. These criminal activities erode respect for the rule of law and lead to socio-economic degradation and the proliferation of gangsterism. The current government approach as custodians of the resources is to maximise the return from confiscations. SAPS are not using the full power of the law to address poaching of marine living resources, particularly abalone, as a priority crime and do not allocate their resources commensurate with the value of the commodity. As a country that is beleaguered by fisheries crime, overfishing and exploitation, South Africa must take a tough stance and should pursue criminal organisations with all the power that the state can muster. It must also ensure that national fisheries resource management is improved so that local communities can benefit. The implementation of a conforming strategy would be socially and politically unpopular, but the future benefits will outweigh the outlay.

Justice denied? Prosecutors and presiding officers' reliance on evidence of previous sexual history in South African rape trials

This article presents data from a study conducted by the Medical Research Council of South Africa, focusing on rape attrition in South Africa at different stages in the processes (from reporting at a police station to potential conviction). The study found that of the 3 952 reported cases of rape analysed 65% were referred to prosecution, and trials commenced in 18,5% of cases. Of the total 3 952 cases reported, 8,6% resulted in a guilty verdict. Using qualitative data from a subset of trial transcripts, the article focuses specifically on the problematic views of both presiding officers and prosecutors based on rape myths and gender-stereotyping at trial, and suggests that these are a factor affecting the attrition rate between cases referred to trial and those that result in a not guilty verdict.

The omission of the opt-out clause: The revised (and improved?) Traditional Courts Bill 2017

The Traditional Courts Bill B1B-2017 omits the opt-out clause and the notion that engagement with traditional courts is on a voluntary and consensual basis – a long-standing sticky point with traditional leaders. Under the Bill, individuals are bound to attend a traditional court when summoned and cannot opt-out of the system, which conflicts starkly with the notion of customary law as a voluntary and consensual system of law. This article argues that compelling individuals to attend a traditional court may be unconstitutional for unjustifiably infringing the rights to culture, a fair trial and equality.

Admission of guilt fines: a legal shortcut or delayed shock?

A popular perception shared by peace officers and the public alike is that the payment of an admission of guilt fine finalises the judicial process and no criminal record will result. However, paying an admission of guilt fine in terms of section 56 of the Criminal Procedure Act means that the person is deemed to have been convicted and sentenced in a court of law. People who pay admission of guilt fines later discover with shock that they in fact have a criminal record, with severe consequences. Often costly High Court applications will have to be instituted to set aside the conviction and sentence. Peace officers have a duty to inform a person of the consequences of paying an admission of guilt fine, but often do not do so and even abuse the admission of guilt system to finalise matters speedily. This article examines the consequences for a person who pays an admission of guilt fine. It further investigates whether there is a duty on Legal Aid South Africa to provide legal assistance in these matters and whether an administrative infringement process should be investigated.

The criminalisation of gang activity in South Africa: reassessing the rationale

Criminal gang activity presents a substantial threat to the safety and security of, in particular, the inhabitants of the Cape Flats in Cape Town. The State has intervened legislatively through the form of the Prevention of Organised Crime Act 121 of 1998. This is somewhat of a ‘super-criminalisation’ given that similar common law and statutory measures already existed prior to the promulgation of the Act. What is the rationale for the criminalisation of gang activity in South Africa? Furthermore, if there is sufficient rationale for this super-criminalisation, is there sufficient basis to argue for the additional responsibility of gang leaders, which is currently left uncovered by the Act?