Law, Democracy & Development - Volume 5, Issue 1, 2001
Volumes & issues
Volume 5, Issue 1, 2001
Author Jeremy SarkinSource: Law, Democracy & Development 5, pp VII –XXVIII (2001)More Less
Crime and criminal violence are probably the most important obstacles to public acceptance of human rights. This can certainly undermine the achievement of a human rights culture in South Africa's young democracy. The University of the Western Cape and the University of Ghent in Belgium hosted a conference on crime and human rights on 28 and 29 July 2000. Judge Pius Langa, Deputy President of the Constitutional Court of South Africa, delivered the opening address. The focus of the conference was the intersection and tension between crime and human rights in three main areas - policing, the courts, and prisons.
La violence et la criminalité sont probablement les obstacles majeurs qui empéchent le public d'accepter le principe des droits de l'homme. Il estcertain que c'est la ce qui porte atteinte au fondement d'une culture des droits de l'homme dans la jeune démocratie d'Afrique du Sud. Les 28 et 29 juillet 2000, l'Université du Western Cape et l'Université de Ghent (Belgique) ont animé une conférence sur le thème: criminalité et droits de l'homme. Le discours inaugural a été prononcé par le juge Pius Langa, Vice-Président de la Cour Constitutionnelle. Le thème central de la conférence était la tension née du croisement entre la criminalité et le principe des droits de l'homme, et ce dans trois domaines majeurs - le maintien de l'ordre, les tribunaux et les prisons.
Author Nico SteytlerSource: Law, Democracy & Development 5, pp 1 –30 (2001)More Less
The purpose of the paper is, first. to identify shortcomings in the adversarial process. second, to investigate whether there are ways of adapting the process in the interest of truth-finding. fairness. and efficiency.
The paper commences with an outline of the basic elements of the adversarial and inquisitorial modes of criminal procedure. Then to an exposition of how the operation of the adversarial system in South Africa impedes the realisation of the objectives of the criminal trial. This is followed by a sketch of the current approaches to these problems. In search of solutions. recent developments in international law and foreign jurisdictions dealing with similar issues are then surveyed. The paper concludes with some tentative proposals for further investigation.
Author Helene CombrinckSource: Law, Democracy & Development 5, pp 31 –44 (2001)More Less
During July and August I 997, the South African public was shocked by media reports on the discovery of the body of Mamokgethi Malebana, a seven year old girl from Katlehong on the East Rand. An alarming train of events preceded this gruesome find. In November 1996, Mamokgethi's mother had laid charges against a neighbour of the family, one Daniel Mabote, for allegedly raping the seven-year old girl.
Mabote was accordingly arrested, and on his appearance in the Germiston regional court, he repeatedly applied to be released on bail. On two occasions, he was refused bail because of his threats of retaliation against the daughter and her mother for reporting him. His third bid for bail, however, was successful: he was granted bail to the amount of R2 000 after the prosecutor had indicated that he had no objection against the granting of bail. The accused paid his bail and was subsequently released.
Source: Law, Democracy & Development 5, pp 45 –52 (2001)More Less
It is widely accepted that the human rights principles of constitutional and international law set outer limits within which any sentencing system must operate. This paper seeks to identify the fundamental human rights principles of relevance to sentencing generally.
It then asks whether these principles are of particular relevance to the development of a system of sentencing guidelines. This question is not only considered with the objective of setting restrictive limits beyond which such guidelines may not stray. An attempt is also made to give an indication from a human rights perspective of what a sentencing framework should seek to achieve both for the offender and for the public at large, including the victims of crime. The answers are illustrated with examples from the debate about the development of sentencing guidelines in South Africa.
Author J.J. FaganSource: Law, Democracy & Development 5, pp 53 –58 (2001)More Less
On 27 April 1994 South Africa's first free and universal election was held. An interim Bill of Rights was approved and on Human Rights Day, 21 March 1997, our final Bill of Rights came into operation. safeguarding the fundamental rights of all people in this country. One of those rights was the right to have one's inherent dignity respected and protected. This is expressly extended to prisoners who are entitled "to conditions of detention that are consistent with human dignity, including at least exercise and the provision of adequate accommodation, nutrition, reading material and medical treatment".
The role of international human rights law in the development of South Africa's legislation on juvenile justiceAuthor Julia Sloth-NielsenSource: Law, Democracy & Development 5, pp 59 –83 (2001)More Less
The recognition that children accused of committing offences should be treated differently to adults is now over a century old. The 1899 Illinois juvenile Court Act, which is widely credited as providing the first example of legislation establishing a separate juvenile justice system (Clement 1977: 11-18; Dorhne & Gewerth 1995:54-70), celebrated its centenary in 1999. During the first years of the twentieth century, many jurisdictions followed the Illinois example and enacted legislation dealing with aspects of juvenile justice, as well as establishing separate institutions for the treatment of children in conflict with the law. Amongst the common law countries, these included the other states in the United States, the United Kingdom, Australia, and Canada.
Freedom of religion v drug traffic control : the Rastafarian, the law, society and the right to smoke the "holy weed"Author Pierre De VosSource: Law, Democracy & Development 5, pp 85 –107 (2001)More Less
The Supreme Court of Appeal - South Africa's highest court for non-constitutional matters - recently had the opportunity to consider whether the prohibition on the use and possession of cannabis sativa (dagga) by Rastafarians constituted an unjustified infringement of their right to freedom of religion. This was an important test case for the court, as it is being perceived as struggling to adapt to the new constitutional dispensation and has been criticised for its reluctance to engage with the Bill of Rights in a meaningful way. The case was therefore of some importance not only for the particular outcome it might produce, but also for the way in which the court engaged with the constitutional issues of the case to reach the said outcome. As such, the SCA's approach towards the jurisprudence generated by the Constitutional Court on the topics of freedom of religion and the limitation of rights would speak volumes of its commitment to the (not so) new constitutional order based on the values of human dignity, equality and freedom trumpeted in the founding provision of the Constitution as well as in several sections of the Bill of Rights.
Stretching solidarity too far : the impact of fraud and corruption on social security in South AfricaAuthor Kitty MalherbeSource: Law, Democracy & Development 5, pp 109 –126 (2001)More Less
The focus of this article will be the negative impact of crimes such as corruption and fraud on the state's capacity to deliver adequate social security.
An attempt will firstly be made to explain briefly what is generally understood by terms such as social security, corruption and social security fraud, followed by a brief discussion of the right to access to social security. Next, the incidence of fraud and corruption on three levels, namely by state employees, employers and beneficiaries will be examined. This will be followed by an analysis of the impact of the penalties imposed by social security law on the levels of fraud and corruption in the social security system. Finally, some suggestions will be made on measures to combat social security fraud and corruption in South Africa.
Author Sam RugegeSource: Law, Democracy & Development 5, pp 127 –128 (2001)More Less
The case deals with the question of whether a High Court judge is an employee of the state or not, in light of the constitutional principle of independence of the judiciary. The question arose as a point in lamine in an application by a judge of the High Court of Namibia against the government of Namibia. The judge sought an order directing the respondent to desist from unilaterally altering the applicant's conditions of employment by depriving him of his entitlement to the provision of water, electricity and refuse disposal free of charge and at the cost of the respondent.