UWCScholar :: Browsing by Author "Nortje, Windell"

Browsing by Author "Nortje, Windell"

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The accountability of juveniles for crimes under international law
(University of the Western Cape, 2016) Nortje, Windell; Werle, Gerhard
Children have been committing crimes during times of war and other armed conflicts since time immemorial. Yet, it is only over the last few decades that cognisance is being taken of child soldiers as a type of juvenile. The unfortunate sight of a child holding a gun has become a familiar picture throughout armed conflicts, especially in Africa. Both boys and girls are used as child soldiers and they can be as young as 5 years old. They are mainly regarded as victims of crimes under international law and are therefore usually rehabilitated once they have been disarmed and demobilised. Notwithstanding their need for rehabilitation, it is a fact that child soldiers commit some of the most egregious crimes under international law. They receive military-style training and are presumably not afraid of killing and carrying out orders. Yet it is recognised that generally they do not have the same level of maturity as adults. The reality of child soldiers who join armed forces therefore presents complex legal questions in the face of contemporary international criminal law principles which, on the one hand, afford protection to all children, and on the other, unequivocally call for the prosecution and punishment of those who are individually responsible for committing crimes under international law. Consequently, various safeguards need to be upheld to ensure that the best interests of the child are maintained once a child soldier is held criminally responsible. This thesis analyses the extent to which child soldiers can be prosecuted under domestic and international law, as well as the implementation of alternative measures to prosecution. The thesis proposes that a case-by-case approach should be considered when child soldiers are prosecuted for crimes under international law, thereby investigating and analysing the often distinctive circumstances related to their crimes.
Child soldiers and the defence of duress under International Criminal Law
(Routledge, 2021) Nortje, Windell; Quénivet, Noëlle; Macmillan, Palgrave
Atrocities committed by children are frequently explained away by arguments of coercion: children are forced by commanders to participate in acts of extreme violence, threatened with brutal punishment if they fail to comply. Indeed, in the limited cases where children or former child soldiers have come before courts, duress has often been raised as a key defence. In my own research on child perpetrators of genocide in Rwanda,1 ‘irresistible constraint’, as it was worded in the Rwandan legislation, was frequently invoked by defendants; in the very first juvenile case before the Rwandan courts, the 16-year-old defendant argued that he had been forced to kill his four nephews to save his own life. His plea was accepted in part – as a mitigating factor rather than complete defence. Duress was one of the defences raised by Dominic Ongwen before the International Criminal Court. Whilst being prosecuted for crimes committed as an adult, Ongwen had been forcibly conscripted into the Lord’s Resistance Army in Uganda around the age of 9 or 10.2 And duress has played in important role in refugee exclusion proceedings, with child soldiers arguing that they were coerced into committing crimes when seeking to negate individual criminal responsibility as a ground for exclusion.
Compensation orders in criminal proceedings - a fresh perspective
(Litnet Akademies, 2017) Hamman, Abraham; Nortje, Windell
South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses compensation orders as a possible form of punishment that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate victims who have suffered damage or loss resulting from criminal activities.
The criminal accountability of child soldiers in the light of armed conflict
(University of the Western Cape, 2009) Nortje, Windell; Fernandez, Lovell
The criminal accountability of child soldiers in the light of armed conflict
(University of the Western Cape, 2009) Nortje, Windell; Fernandez, Lovell
A critical analysis of political corruption within the executive and the role of the constitution
(University of the Western Cape, 2023) Kati, Siphesihle; Nortje, Windell
The achievement of constitutionalism in South Africa is often applauded for its pivotal liberation that it laid upon individuals through bureaucracy, human rights, institutionalism, and moral science. However, there should be a level of consideration for the idea of constitutionalism having also opened a gap that enables societies to operate in a destructive manner. Particularly, this paper asks whether in South Africa the current transformative constitutionalism grants permission for political corruption to exist within its civilisation. This study is meant to execute a critical analysis of the Constitution of the Republic of South Africa 1996 (1996 Constitution). Precisely focusing on the constitutional obligations set in Chapter 5 of the Constitution and its contribution on the rife of political corruption and disturbance among other constitutionally guaranteed provisions. Since the early 1900s, constitutional law in South Africa has always been a participating factor regarding the instability of the state, specifically when it comes to the powers given to the ruling government. Therefore, the relationship between political corruption and constitutional law is not a new age dilemma. However, there is a lack of literature contribution on the issue. This study will uncover the relationship between constitutionality and political corruption using the qualitative method based on legislation, judicial precedent, publications, and literature reviews. The aim of this research is to provide clarity within the battle of political corruption. This assessment is to touch on the history of constitutional law in South Africa and the constitutional obligations that are currently at war.
Die bekendmaking van die identiteit van anonieme minderjariges by meerderjarigheid: regverdigbaar of nie?
(LitNet Akademies, 2016) Hamman, Abraham; Nortje, Windell
Die identiteit van minderjariges word nie bekendgemaak tydens hofverrigtinge nie. Sowel getuies as slagoffers en oortreders kry hierdie vergunning en word deur die wetgewer beskerm. Hierdie beskerming verval egter wanneer hulle 18 jaar oud word. Indien hulle nie die howe nader vir 'n verbod op die publikasie van hul identiteit nie, is daar geen remedie vir sulke persone nie. Hierdie bydrae kyk spesifiek na die posisie van anonieme minderjarige getuies, slagoffers en oortreders wanneer hulle 18-jarige ouderdom bereik. Dit word gedoen om te bepaal of hierdie persone se identiteit met die bereiking van 18 jaar bekendgemaak moet word en of hulle wel geregtig op verdere anonimiteit is. 'n Ander kwessie is of 'n veroordeelde minderjarige misdadiger anders as getuies en slagoffers by die bereiking van meerderjarigheid behandel moet word. Die moontlike effek van media-aanslae op die emosionele ontwikkeling van sulke 18-jariges word ook onder die soeklig geplaas. Verskeie bepalings in Suid-Afrikaanse wetgewing word ontleed wat wel die identiteit van minderjariges beskerm. Die twee uiteenlopende gevalle van Zephany Nurse en die Griekwastad-seun word met mekaar vergelyk. Die een was 'n slagoffer in 'n babadiefstalsaak en die ander 'n veroordeelde minderjarige oortreder. Albei is nou ouer as 18 jaar en waar die een se huidige identiteit deur 'n hofbevel beskerm word, is die ander se identiteit al verskeie kere bekendgemaak nadat hy 18 geword het. Daar word ook verwys na 'n Engelse saak waar beslis is dat twee veroordeelde minderjarige oortreders se nuwe identiteite wel verswyg moet word na hulle 18 jaar oud geword het, omdat die familie en vriende van hul slagoffer moontlik die wet in eie hande kon neem. Daar word aanbeveel dat die wetgewer oorweging daaraan moet skenk om die bekendmaking van die identiteite van minderjarige getuies, slagoffers en oortreders by die bereiking van 18-jarige ouderdom te hersien.
A fresh perspective on historical sexual abuse: the case of Hewitt v S 2017 1 SACR 309 (SCA)
(Academy of Science of South Africa, 2017) Nortje, Windell; du Toit, P.
Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries.
Reducing recidivism in South Africa: towards a needs-based approach to the rehabilitation of offenders
(University of the Western Cape, 2024) Marshall, Tasne Verna; Nortje, Windell
The Department of Correctional Services (hereafter, DCS) rehabilitation programmes and treatments frequently address one issue while ignoring others. Therefore, although existing rehabilitation programmes aim to prepare the offender for reintegration into society, these programmes frequently concentrate solely on one facet of an individual’s challenges while overlooking the complexities of their issues and any accompanying disorders they may have. This one-size-fits-all approach is detrimental to offenders striving to break the cycle of release and re-arrest. When attempting to reintegrate into society, prisoners encounter several psychological and social issues which contribute to high recidivism rates. Reducing offenders' high recidivism necessitates concentrating on sociodemographic factors as well as providing offenders with a range of rehabilitation programmes tailored to their unique needs.
Section 9b of the protected disclosures amendment act 5 of 2017: Discouraging whistleblowing in South Africa?
(University of the Western Cape, 2018) Nortje, Windell
The Protected Disclosures Act 26 of 2000 provides protection for individuals who blow the whistle on corrupt activities in South Africa. The Protected Disclosures Amendment Act 5 of 2017 widens the scope of the original Act. This article focuses on the provision in the amendment which criminalises the disclosure of false information by a potential whistleblower. It is argued that this provision may operate as a hurdle for those individuals contemplating divulging information related to corruption. Nevertheless, the amendment is an important one, since there have been cases where employees have provided false information concerning corrupt activities. However, at what cost will this amendment prevent future whistleblowers from disclosing valuable information necessary to detect and prosecute economic crimes? It is argued that the amendment could have an undesirable effect on the contribution of whistleblowing to the fight against corruption in South Africa. The amendment will be discussed against the backdrop of the important aims of the original Act and within the context of the prevention of corruption.
Towards an improved framework for regulating gender-based violence in South Africa
(University of the Western Cape, 2024) Roux, Pearlin; Nortje, Windell
This mini-thesis critically evaluates South Africa’s ongoing gender-based violence (GBV) crisis and assesses the sufficiency of its legislative responses. The study opens with a contextual overview of GBV, underscoring the urgent need for targeted intervention to address this pervasive issue. Through a historical and theoretical lens, it examines how South Africa’s apartheid legacy and entrenched patriarchy have contributed to a societal landscape where toxic masculinity and GBV are prevalent, thus highlighting the enduring impact of historical factors on present-day gender and violence dynamics. Subsequently, the thesis provides a detailed analysis of the current legal framework addressing GBV in South Africa, questioning its effectiveness in protecting victims and deterring offenders. By reviewing key legislative provisions, it identifies critical gaps and weaknesses that may impede enforcement and hinder victim protection. Additionally, the study evaluates the GBV reporting process, public awareness levels, and the responsiveness of law enforcement agencies, especially the South African Police Service (SAPS), to assess whether these systems effectively support victims and promote justice. By addressing the identified gaps and proposing targeted reforms, this research aims to contribute to the development of a safer, more equitable society for all genders in South Africa.
Vergoedingsboetes in strafregtelike verrigtinge - ŉ vars perspektief
(Litnet Akademies, 2017) Hamman, Abraham; Nortje, Windell
South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses the compensation penalty as a possible punishment means that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate the victim who has suffered damage resulting from the criminal activity. The accused’s constitutional right to a fair trial provides that the lightest possible punishment should be imposed upon him. If a compensation fine is indeed a more lenient sentence, it should then be imposed. The actual sentence rests solely on the discretion of the presiding officer. There are various sentencing options available to the presiding officer of which life imprisonment is the heaviest, and a fine the most lenient. A fine is a form of punishment which requires the accused to pay an amount of money to the state. A compensation order on the other hand is a sentencing option that requires the accused to pay a monetary amount, as determined by the court, to the victim. Notably, the court will not grant such an order if the accused does not have the financial means to pay the compensation. Compensation orders may take various forms and are not limited to monetary amounts. Compensation orders are regulated in terms of sections 297 and 300 of the Criminal Procedure Act 51 of 1977. Compensation orders in criminal proceedings in South African courts are rather the exception than the rule. Although it is included in sections 297 and 300, it is not regularly applied by our courts. It may be that some courts are unaware of these types of sentences or that the focus is more geared towards the accused and on the interest of the broader community, as opposed to the victims. Consequently, victims in criminal proceedings are more often than not placed in a disadvantaged position as their requests for compensation are frequently disregarded by courts. Apart from the specific provisions of the Criminal Procedure Act dealing with such compensation orders, this discussion also deals with some court decisions where it was placed under the spotlight.
Victim or villain: exploring the possible bases of a defence in the Ongwen case at the International Criminal Court
(Brill Academic Publishers, 2017) Nortje, Windell
The reality of child soldiers who join rebel forces once they reach adulthood pres¬ents complex legal questions in the face of contemporary international criminal law principles which, on the one hand, afford protection to all children, and on the other, unequivocally call for the prosecution and punishment of those who are guilty of committing serious crimes. Currently, the case of Dominic Ongwen before the ICC raises contentious issues, including whether or not international criminal law permits the consideration of factors, such as the impact of the experiences as a child soldier on future conduct, when he is prosecuted for allegedly committing crimes during adulthood. This article specifically examines whether Ongwen’s experiences as a child soldier could serve as a possible defence and/or as a mitigating factor.
Warrantless search and seizures by the South African police service: Weighing up the right to privacy versus the prevention of crime
(Academy of Science of South Africa, 2021) Nortje, Windell
The constitutional right to privacy is enshrined in section 14 of the Constitution of the Republic of South Africa, 1996. It is premised on the notion that all persons should be protected from intrusions on their privacy by any person or institution. The Constitutional Court has also, on numerous occasions, held that the right to privacy is bolstered by its connection with the right to human dignity. It is undeniable that every person's right to privacy should be protected. However, a person's right to privacy is violated when police officials conduct warrantless search and seizure operations. Generally section 22 of the Criminal Procedure Act provides for warrantless search and seizure operations when a police official has a reasonable suspicion that a search warrant will be issued to him and that a delay in obtaining such a warrant would defeat the object of the search.

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