oa Comparative and International Law Journal of Southern Africa - Expedient legal fiction and death sentences in Bophuthatswana
|Article Title||Expedient legal fiction and death sentences in Bophuthatswana|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 University of Botswana|
|Publication Date||Mar 1991|
|Pages||105 - 120|
|Keyword(s)||Alpheus Phukubye Case, Bophuthatswana, Capital punishment, Common purpose doctrine, Death penalty, Jonathan Molema Case, Judiciary, Legal fiction and Versari doctrine|
In this article the author addresses the increased application of the common purpose doctrine in Bophuthatswanan capital cases since the period of political upheaval in the mid-eighties. The use of legal fiction in capital cases may affect the principle of equality before the law. It may also have a bearing on the constitutionality of capital punishment in Bophuthatswana where its Bill of Rights and legal system is regularly vaunted by politicians and members of the judiciary, while the population at large remain unimpressed and cynical about the legal order. The application of such a legal fiction emphasises the arbitary nature of the death penalty. The resumption of hangings in Bophuthatswana illustrates this point.
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