Department of Criminal Justice and Procedure

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https://hdl.handle.net/10566/1645

The Department of Criminal Justice And Procedure offers a select menu of highly sought-after elective courses in criminal law, child justice, conveyancing, legal process, and comparative criminal justice. The Department also conducts and publishes internationally recognised research in these subject areas.

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Now showing 1 - 20 of 144

A critical analysis of the laws which affect the size of the remand detention population in South Africa
(University of the Western Cape, 2024) Davids, Gidean Zion; Albertus, Chesne
Background: The term ‘remand detainee’ means a person detained in a remand detention facility awaiting the finalisation of their trial. Such person has not commenced with serving a sentence or is not already serving a prior sentence. Remand detainees have a unique status, in that they are presumed innocent (if they have not been convicted yet) and are protected by certain rights that do not apply to sentenced offenders. These rights will be discussed later in this chapter. A bail application of an accused person should be seriously considered by the courts and in principle such decision should not easily lead to remand detention where bail is not a just option. Put plainly, when the courts cannot grant bail to the accused, detention should not be the automatic means to ensure the accused’s attendance at his/her trial. There are after all various ways in which the attendance of the accused can be secured at his/her trial.5
A Critique of the International Criminal Court’s Approach to Reparations for African Victims Of International Crimes.
(University of the Western Cape, 2024) Dlamini, Bongani Maxwell
When the Rome Statute of the International Criminal Court was adopted on 17 July 1998 and came to effect on 2 July 2002, it established a platform for bringing justice to victims of international crimes. The Rome Statute brought a distinct framework which provided protection and participation of victims including the award of reparations to remedy the harm they have suffered. Article 75(1) and (2) spell out the mandate entrusted to the International Criminal Court (ICC or the Court) to advance principles regarding the granting of reparations by the Court. The article further gives power to the Court to award orders of reparations against convicted persons. The mandate of the Court to award reparations is an important aspect especially for African victims against whom the international crimes of genocide; war crimes; crimes against humanity and the crime of aggression as provided for in the Rome Statute; have been perpetrated. However, the implementation of the mandate of reparations for victims seems to be encountering a number of challenges that include the identification of the victims in different circumstances and other substantive factors. This research seeks to establish how well the task of reparations has been operationalised in practice by the Court by examining the five cases that the Court has so far awarded reparations in.
Access to HIV treatment for refugees : case study of South Africa and Uganda
(University of the Western Cape, 2015) Njiba, Jessica Tshiosha; Durojaye, E
Access to legal assistance for indigent accused person during the pre-trial stage: an analysis of the role of paralegals.
(University of the Western Cape, 2025) Mackay, Ulrich Eduardo
South Africa (SA) remains one of the most unequal societies in the world with a highly skewed income distribution. The gap between the rich and poor grows each year, and it is undeniable that poverty is an epidemic in SA. In light of the vast disparities between indigent and affluent persons in South Africa, it may be understood why few people can afford legal representation and even less can access quality legal representation.
Accountability for ISIS atrocities : is the International Criminal Court a viable prosecutorial option?
(University of the Western Cape, 2016) Dale, Adi Dekebo; Werle, Gerhard
The Islamic State of Iraq and the Levant is a jihadist militant group. The members of this militant group have committed criminal acts of unspeakable cruelty. These staggering criminal conducts are documented by the United Nations, international human rights organisations, and media. Besides, the group itself gives first-hand information through social media and its magazine. Having witnessed the atrocities committed by Islamic State of Iraq and the Levant, the United Nations Security Council affirmed that the Islamic State of Iraq and the Levant’s conduct in Syria and Iraq is a threat to international peace and security. Therefore, the media and various role players have called for the intervention of International Criminal Court. This research paper analyses whether the International Criminal Court is a viable prosecutorial option to account the Islamic State of Iraq and the Levant members for their crimes. For the Court to be a viable prosecutorial avenue, it must have a jurisdiction. Accordingly, this research paper critically examines whether the International Criminal Court has subject matter, personal and/or territorial jurisdictions to try the Islamic State of Iraq and the Levant perpetrators. The study concludes that although the criminal conducts by Islamic State of Iraq and the Levant members constitute crimes under the Rome Statute, the Court, however, has limited jurisdictional reach over the perpetrators. It is submitted that with a limited and fragmented territorial and personal jurisdictional reach over the perpetrators, the Court is not a viable prosecutorial avenue.
Adopting memory and truth as non-judicial approaches to transitional justice in Cameroon
(University of the Western Cape, 2023) Ewi, Gilbert Bua; Mark Iyi, John
The right to an effective remedy for victims of mass atrocities and the massive human rights abuses perpetrated in intra-state conflicts remains weak in international law. This is more so when such conflicts involve a ruling government and a section of its population. A host of substantive and procedural legal issues prevent victims from being able to seek redress in national and international courts. This problem is particularly acute where victims seek redress for the abuses perpetrated by the regime’s military and other paramilitary forces in connivance with law enforcement personnel, loyal to the regime in power. The nature of these conflicts, full of the regime’s absolute power over the judiciary, the paramilitary and military forces, the gendarmerie and the police force, makes it difficult to hold the regime accountable for such human rights abuses. This doctrinal research seeks to critically examine and assess other transitional justice measures and then ascertain the effectiveness of the non-judicial mechanisms of memory and truth in a bid to achieve sustainable peace and reconciliation in the conflict-torn state of Cameroon. The research seeks to examine the parameters of an effective remedy under international law and then proceeds to assess the concept of memory and truth as a transitional justice mechanism offering human rights-compliant remedies geared towards achieving sustainable peace when deployed in the Cameroonian conflict.
An analysis of the human rights abuses against minority groups and the prospects of transitional justice in post–Mugabe Zimbabwe
(University of the Western Cape, 2024) Makoni, Tinashe; Iyi, John-Mark
Reports indicate that between 1980 and 2017, Zimbabwe experienced widespread and escalating human rights violations under the leadership of the late Robert Mugabe and his party. Amnesty International and Human Rights Watch, among other organizations, have documented numerous violations, including the infringement of the right to shelter, freedom of assembly, and access to justice. Minority groups, such as the Ndebele tribe, women, children, and the LGBTQ community, have been particularly targeted by this oppressive regime. This study focuses on the experiences of minority groups in Zimbabwe. The main challenges faced by Zimbabwe include a culture of impunity and a compromised judiciary, which have perpetuated human rights abuses. Genuine reforms are necessary to address this issue effectively. In 2017, Mugabe was overthrown by a military coup, marking a new era and bringing hope for a better Zimbabwe among both domestic and international communities. The subsequent government, referred to as the "new dispensation," saw the installation of a new President but with familiar faces in power. This study examines the hardships endured by minority groups over the years and explores the events leading up to and following Mugabe's ousting.
An appraisal of the Institutional framework under the Kenyan proceeds of crime and Anti-Money laundering act, 2009
(University of the Western Cape, 2017) Moroga, Denis wangwi; Fernandez, Lovell
Money laundering (ML) evolves in tandem with global technological advancement. This phenomenon calls for multi-faceted responsive measures at national and international levels to combat this nefarious crime.1 Today, combating ML requires co-operation among, inter alia, financial intelligence units (FIUs), reporting institutions, law enforcement agencies, the judiciary, as well as inter-state co-operation. In response to the ML threat, Kenya has adopted comprehensive anti-money laundering (AML) laws, such as the Proceeds of Crime and Anti- Money Laundering Act No. 9 of 2009 (POCAMLA) and the Prevention of Terrorism Act No. 30 of 2012. These, among other statutes, constitute the principal arsenal of the AML legal framework.
An assessment of Anti-Money laundering mechanisms for politically exposed persons in Mauritius
(University of the Western Cape, 2017) Devi, Mungar Divya Luxmi; Fernandez, Lovell
Money laundering is a practice 'as old as money itself'.1 In 1931, after the conviction of Al Capone for tax evasion, there was a noticeable trend in the use various methods to camouflage assets deriving from crimes. Indeed, the practice of money laundering became not only more prevalent, but also more detectable. However, the term "money laundering" was used for the first time in connection with the Watergate Scandal in the United States, when the Republican Party channelled money obtained illegally via Mexican banks to fund its election campaign. In 1986, the US Congress adopted the Money Laundering Control Act to criminalise money laundering. The US recognised that, having an international character, money laundering could not be combated with domestic laws and controls alone, and that, being the only country implementing strict regulations, the US had placed itself in an economically disadvantageous position. Therefore, the US brought the issue of money laundering to the attention of the international community.
An assessment of anti-money laundering mechanisms for politically exposed persons in Mauritius
(University of the Western Cape, 2017) Devi, Mungar Divya Luxmi; Fernandez, Lovell
Money laundering is a practice 'as old as money itself'. In 1931, after the conviction of Al Capone for tax evasion, there was a noticeable trend in the use various methods to camouflage assets deriving from crimes. Indeed, the practice of money laundering became not only more prevalent, but also more detectable. However, the term "money laundering" was used for the first time in connection with the Watergate Scandal in the United States, when the Republican Party channelled money obtained illegally via Mexican banks to fund its election campaign. In 1986, the US Congress adopted the Money Laundering Control Act to criminalise money laundering. The US recognised that, having an international character, money laundering could not be combated with domestic laws and controls alone, and that, being the only country implementing strict regulations, the US had placed itself in an economically disadvantageous position. Therefore, the US brought the issue of money laundering to the attention of the international community.
An Assessment of Ghana's Legal and Institutional Anti-Money Laundering Framework
(University of the Western Cape, 2017) Adade, Nancy Aku; Fernandez, Lovell
The primary aim of an individual who engages in criminal activity, particularly at an organised level, is to make profit. However, criminals are not merely bent on gaining financial profit, but are especially desirous of enjoying the proceeds of the crimes that they perpetrate and reinvesting the illicit proceeds in other criminal schemes. Such reinvestments have to be made carefully, without drawing attention to their criminal provenance. Financial institutions, such as banks, are used to launder the illegally obtained monies. Money laundering and the financing of terrorism are transnational crimes which constitute a great economic, social and political threat to national economies and political stability. The devastating effects of money laundering and the financing of terrorism have activated the international community to develop a comprehensive anti-money laundering legal framework at both the international and regional level. Most countries in the world today have adopted antimoney laundering laws and policies.
An evaluation of Zimbabwe's national peace and reconciliation commission Bill, 2017
(University of the Western Cape, 2017) Maribha, Sheilla Kudzai; Fernandez, Lovell
This is a study of Zimbabwe's National Peace and Reconciliation Commission Bill (hereafter NPRC Bill). The NPRC Bill seeks to bring the National Peace and Reconciliation Commission (hereafter NPRC) of Zimbabwe into operation. The NPRC is a truth commission set to promote post-conflict justice, national peace and reconciliation in Zimbabwe. The study discusses the prospects of establishing an effective NPRC in Zimbabwe by examining the provisions of the NPRC Bill. The view of the paper is that, without proper guidance from a comprehensive law, the NPRC is bound to be a victim of its own failure.
An international legal perspective on conflict-related sexual violence: examining the plight of girl soldiers
(University of the Western Cape, 2024) Higo, Noriko Tasneem
This paper aims to examine the extent of the legal protection of the girl soldier in armed conflicts, with a particular focus on sexual violence, within the lens of International Law. Furthermore, it is the objective of this paper to bring light to the ever-current and escalating legal issue by closing the gap and bringing special attention to the academic sphere of International Law, namely International Humanitarian Law, International Criminal Law and International Human Rights. The methodology of the current legal protection provided to girl soldiers in armed conflict under International Law will be provided through a desktop qualitative study. In order to explore the scope of the protection, an analysis of how International Law protects girl soldiers through legal instruments, International Criminal Court (ICC) judgments, and other significant principles and standards will be assembled. The girl soldier will be viewed from a victim’s perspective rather than a perpetrator as it will inspect the international crimes of sexual violence abuses against her, such as the war crimes and crimes against humanity by committing rape, sexual slavery, enforced prostitution and forced pregnancy, and torture of girl soldiers. Issues faced by female child soldiers prior to enlistment and conscription, during their roles as female child soldiers and the aftermath, rehabilitation, reintegration and stigmatisation of female child soldiers into society as females will be investigated. Victims who have faced sexual violence abuse are evaluated, assessing whether they are adequately addressed within the ICC and other applicable tribunals, such as the International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). As it stands, the research within the legal arena of resources and laws can be predetermined to neglect the girl soldier and the sexual violence abuses faced within armed conflict. The failure to acknowledge these sensitive subjects amounts to the failure to protect children, females and those exposed to armed conflict, a trinity of vulnerability within society.
Analysis of political corruption trends in transitional states
(University of the Western Cape., 2011) Maguchu, Prosper Simbarashe; Fernandez, Lovell
An Analysis of the Anti-corruption Division of the High Court of Uganda
(University of the Western Cape, 2015) Nanyunja, Brenda; Koen, R.A
An analysis of the challenges in curbing and combatting Covid-19 related money laundering threats and vulnerabilities in South Africa
(University of the Western Cape, 2022) Wesso, Coleta Janine; Hamman, Abraham
Earth is confirmed to be the only planet in the entire known universe perfectly located and resourced to host earthly life as we know it.1 It is indeed a phenomenon to behold. South Africa, often referred to as the Rainbow Nation, certainly speaks to this phenomenon. The country is granted miraculous landmarks, tourist attractions, lush vegetation, platinum metals, gold,2 cultural diversity and beautiful citizens.3 Cape Town, the capital city of the Western Cape Province and also the legislative capital of South Africa,4 is in fact named the third greatest city on earth because of its, amongst other aspects, outstanding topography and geography.5 It is, however, incontestably and unfortunately so that with this said splendour, detriment also resides.
An analysis of the challenges presented to witness protection in combating money laundering in South Africa
(University of the Western Cape, 2022) Makhubele, Ethel Fikile; Albertus, Chesne
The United Nations Asia and Far East Institute (‘UNAFEI’) and the Department of Justice of the Republic of the Philippines held the Fourth Regional Seminar on Good Governance For South East Asian Countries from 6-9 December 2010.1 During that seminar, Haruhiko Ukawa, the Deputy Director of UNAFEI, stated in his introductory remarks that to detect, investigate, and prosecute illegal activities and find offenders guilty, the criminal justice systems depend largely on witnesses’ testimony. Consequently, it is important for witnesses to testify without fear to ensure the criminal justice system operates properly and achieves their goals.2 At the outset, however, it ought to be borne in mind that with many financial crimes, more particularly the crime of money laundering, witnesses are often reluctant to testify. The prosecution for such crimes is thus not easily achieved, and conviction rates may be negatively affected.
An analysis of the critical shortcomings in South Africa's anti-money laundering legislation
(University of the Western Cape, 2016) Williams, Carol; Fernandez, Lovell
An Analysis of the Critical Shortcomings in South Africa’s Anti-Money Laundering Legislation
(University of the Western Cape, 2017) Williams, Carol; Fernandez, Lovell
From failing to arrest and surrender Sudanese President Omar Al-Bashir1 in accordance with its obligations under the Rome Statute of the International Criminal Court2 (Rome Statute), to its President acting inconsistently with its Supreme law3, it is evident that the rule of law is under threat in South Africa. Furthermore, South Africa has witnessed the cultivation of a culture of impunity for corruption in high office. South Africa has also experienced an increase in heinous crimes committed against women and children. The South African Rand recently plummeted given that its Minister of Finance Pravin Gordhan, recently faced charges of fraud4, as well as the ripple effect caused by the Fees Must Fall Movement.5 Against the backdrop of the above-mentioned issues that plague South Africa and hinder its development, the fight against money laundering hardly seems of pivotal importance in achieving the desired stability and development of the country. There is a public perception that money laundering is a crime of little consequence.8 This perception derives from the fact that money laundering does not have a direct impact on its victims and in some instances benefits the economy as it increases the profits for the financial sector and results in a greater availability of credit.9 Laundered money arguably is not harmful but rather beneficial to developing economies because money remains money, whether it is proceeds of crime or honestly earned.10 Although an increase in money is appealing to developing countries, the benefits that accompany laundered money are short-lived as the crime affects society adversely in the long run.11 However, where a country fails to prevent and prosecute money laundering offences, the prevalence of money laundering will impede the development of a state as it not only increases the profitability of crime and encourages the prevalence of corruption, but it also causes damage to critical financial sector institutions.12 Money laundering influences the commission of crimes that generate large amounts of profit, namely, organised crime, which is often described as the twin brother of money laundering.13 This is because criminals do not commit crimes to make money only but to enjoy this money as well.14 However, criminals need to launder their money in order to enjoy the proceeds of their criminal activities without drawing attention to these activities.15 Countries that combat money laundering effectively make it more difficult for criminals to launder the proceeds of their crimes. It becomes more risky for them to indulge in their ill-gotten gains, thus dissuading them from engaging in economic criminality.16 Money laundering is a process where the proceeds of crime are concealed and disguised in order to make them appear lawful.17 Criminals are thus able to enjoy the financial benefits of the crimes they commit.18 The pervasiveness of money laundering in a country does not only affect the confidence the public have in the country’s financial institutions but also undermines the confidence foreign investors and financial institutions have in a developing state’s financial institutions.19 A country can, therefore, run the risk of not benefitting from foreign direct investment.20 The financial institutions rely heavily on what the public think about their integrity.21
An analysis of the South African legal framework applicable to the arrest and detention of immigrants due to their illegal status
(University of the Western Cape, 2022) Sango, Nomzamo Wendy; Albertus, Chesne
The word ‘immigration’ is derived from the word ‘immigrant’ and denotes the act of a foreign national person entering a country to attain permanent residence.1 The correlative term ‘emigration’ denotes the act of such persons leaving their former or home country.2 Despite these clear terms, there are unfortunately, some South Africans who use derogatory terms such as ‘amakwerekwere’ towards immigrants to indicate ‘other’, and they do so frequently.3 Persons who use these terms in reference to foreign nationals usually do so irrespective of the person’s actual legal status in the country.

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