Magister Legum - LLM (Criminal Justice and Procedure)

Permanent URI for this collectionhttps://hdl.handle.net/10566/10274

Browse

Now showing 1 - 20 of 173

Legal responses to vigilantism in South Africa
(University of the Western Cape, 2025) Dlelembe, Abongile; Nortje, Windell
Despite the transformative ambitions of the Constitution, vigilantism in South Africa is rooted in widespread frustration with the failures of the criminal justice system, particularly weak policing, slow prosecutions, and declining conviction rates. These factors have eroded public trust in formal institutions. As citizens lose faith in the State’s ability to deliver justice, many turn to informal, often violent, mechanisms of self-help such as vigilantism. These practices are unlawful and they emerge as impulsive responses to systemic institutional collapse and the widening gap between constitutional promises and lived reality. This mini-thesis argues that vigilantism should be understood as a direct manifestation of structural dysfunction within the criminal justice system rather than as isolated criminal conduct. However, vigilantism remains unlawful and cannot be justified, even when it emerges from legitimate frustration with a collapsing criminal justice system. The constitutional order cannot accommodate self-help, no matter how understandable its origins. Yet it is equally true that individuals who engage in vigilantism should not be sentenced in the same manner as those who commit violence with a direct intention to cause harm for personal gain or malice. Drawing on comparative lessons from Ghana, a jurisdiction that has enacted anti-vigilantism legislation (the Vigilantism and Related Offences Act 999 of 2019), this research evaluates whether a similar statutory approach would rather deterrence, enhance prosecutorial clarity, and reinforce constitutional accountability.
A restorative approach to criminal justice: examining sentencing reforms in South Africa
(University of the Western Cape, 2026) Nohesi, Nomagugu; Nortje, Windell
This mini-thesis examines the integration of restorative justice principles into South Africa’s sentencing framework, against the backdrop of a criminal justice system historically rooted in retributive punishment. It argues that despite constitutional developments and the formal recognition of victims’ rights, particularly through mechanisms such as victim impact statements, the current sentencing regime continues to prioritise punitive measures, often at the expense of victim participation, offender rehabilitation, and community healing. The study adopts a desktop-based, doctrinal and historical research methodology, informed by socio-legal literature. It draws on legislation, case law, and academic literature and uses New Zealand’s restorative justice model as a comparative reference from which lessons are drawn for South Africa. It critically evaluates the tension between judicial discretion, mandatory minimum sentencing, and the limited application of restorative justice in practice. The research highlights inconsistencies in judicial approaches, the marginalisation of victims in sentencing decisions, and the limited capacity of predominantly punitive measures to address crime, rehabilitation and prison overcrowding. Central to the analysis is the concept of Ubuntu, which underpins restorative justice and emphasises human dignity, reconciliation, and communal harmony. The study argues that although restorative justice has been partially incorporated mainly within the child justice system, it remains underutilised in adult sentencing.
A critical analysis of the challenges faced by the judiciary in facilitating the truth and reconciliation commission’s recommendations on prosecutorial investigations in South Africa
(University of the Western Cape, 2025) Masubelele, Elijah Ephraim; Munyai, Anzanilufuno
This thesis seeks to critically analyse the challenges facing the South African judiciary in facilitating the Truth and Reconciliation Commission’s (TRC) recommendations for prosecutorial investigations. The TRC became the cornerstone of the transitional justice process in South Africa, and it was tasked with, amongst other things, uncovering the truth about the apartheid-era human rights violations and promoting national healing. On 29 October 1998, President Nelson Mandela received the TRC’s final report, which included key recommendations for prosecutorial investigations of individuals who were not granted amnesty. Regrettably, almost two decades later, progress in the implementation of these recommendations remains to be seen. Having said that, in May 2025, there was a significant development in accountability, following the establishment of a judicial commission of inquiry by presidential proclamation to investigate allegations of efforts to obstruct the investigation or prosecution of TRCrelated cases. Taking a desktop methodology, this thesis draws on primary sources, including case law and other legislative instruments. Moreover, the thesis will engage secondary sources, including academic literature, legal commentary, policy documents, and civil society reports, to assess how the judiciary has responded to the TRC’s calls for justice. The study will explore the legal and institutional challenges encountered by the judiciary in prosecutorial investigations. The study will focus on the role of the judiciary in facilitating TRC recommendations. The study aims to contribute to the discourse on transitional justice and criminal accountability in the pursuit of justice and reconciliation.
The use of artificial intelligence to combat money laundering in South Africa
(University of the Western Cape, 2025) Mukomberi, Cynthia Tashinga; Hamman, Abraham John
Money laundering remains one of the most pervasive financial crimes globally, posing major challenges to the security of financial systems, the integrity of markets, and the enforcement of the rule of law. 1 Despite the existence of robust international frameworks and domestic regulatory regimes, incidents of money laundering continue to increase worldwide. This persistent rise has prompted intensified global efforts to develop more effective strategies to prevent, detect, and combat such activities.2 Among the most significant technological advancements influencing contemporary society is the development and integration of artificial intelligence (AI). 3 AI technologies are increasingly transforming various sectors by automating processes, enhancing decision-making, and improving efficiency. In academia, AI facilitates advanced research and knowledge production; in workplaces, it improves productivity; in the financial sector, it streamlines compliance, risk management, and fraud detection.
The implementation of restorative justice principles in the South African Child Justice Act: a critical evaluation of recognition and effectiveness
(Univesity of the Western Cape, 2026) Ndaba, Zusakhe; Muntingh, Lukas
The Child Justice Act 75 of 2008 represents a significant reform in South Africa’s criminal justice system by introducing a child-centred framework that emphasises restorative justice, diversion, rehabilitation, and reintegration rather than punitive approaches. This study critically evaluates the extent to which restorative justice principles are recognised and effectively implemented within the South African child justice system. The research is guided by the central question of how effectively restorative justice practices are implemented in practice as envisioned by the Child Justice Act. The study adopts a doctrinal legal research approach, relying on the analysis of primary legal sources such as the Child Justice Act 75 of 2008, relevant case law, constitutional provisions, and international instruments, alongside secondary sources including academic literature, policy reports, and institutional documents. The research also examines restorative justice practices such as diversion programmes, victim-offender mediation, family group conferencing, and community-based interventions, which aim to promote accountability, repair harm, and facilitate the rehabilitation of children in conflict with the law.
Towards specialized anti-corruption courts for South Africa: a delayed engagement
(University of the Western Cape, 2026) Steyn, Inigo; Nanima, Robert Doya
Corruption destabilises the socio-economic factors and undermines the rule of law. Therefore, Specialised Anti-Corruption Courts aim to strengthen anti-corruption initiatives. Drawing from international and regional conventions, particularly the United Nations Convention Against Corruption, the African Union Convention on Preventing and Combatting Corruption and the Southern African Development Community Protocol against Corruption. The research will determine whether this Court would be a viable option for institutional reform within South Africa’s anti-corruption agencies. However, although a normative framework is established and legal obligation arises out of these various instruments, South Africa still fails to address conviction rates of high-profile cases, court backlogs and weak collaboration and coordination between anti-corruption agencies. As a result, the study will analyse and evaluate existing anti- corruption legislation, case law, and comparative experiences of SACC established in other states. Although states are not mandated to enact a SACC under international law, it may be argued that the SACC would provide judicial independence, specialised expertise and efficiently offer a plausible solution. Therefore, this study aims to create a comparative framework, which is constructed around four interrelated concepts, namely judicial independence, judicial expertise, institutional accountability and judicial efficiency. This comparative framework seeks to identify whether the SACC would assist South Africa in their efforts to combat the aforementioned concepts and to evaluate whether the SACC would be a viable option to combat and prevent corruption efficiently.
Ethiopia and the international criminal court: a critical appraisal of the legal framework for prosecuting international crimes in Ethiopia
(University of the Western Cape, 2012) Tessema, Marshet; Werle, Gerhard
Background to the Study. The UN Diplomatic Conference of Plenipotentiaries on the Establishment of the ICC held in the Rome, Italy from 15 June to 17 July 1998 adopted the Rome Statute by an overwhelming majority of participating governments.' Almost half-a century after the International Military Tribunal at Nuremberg; the ICC, the first and the only permanent International Criminal Court, was established by a multi-lateral treaty for the purpose of investigating and prosecuting individuals accused of the most serious crimes of international concerns-crime of genocide, war crime, crimes against humanity and crime of aggression.
An analysis of restitution and redistribution of agricultural land as a form of reparation in post-Apartheid South Africa
(University of the Western Cape, 2011) Majola, Olwethu
This research paper is a study of a particular means of reparation within the South African context namely, the redistribution and restitution of land rights following the downfall of the Apartheid regime in the country. One of the major effects of Apartheid has been the displacement of communities and indigenous groups throughout South Africa. When the newly elected African National Congress (ANC), Government came to power, it sought to return to these groups and communities their dispossessed land and to negate the effects of the injustices of the past. The restitution of land is seen as a phase, the final phase marking the end of an era stained with the turmoil and suffering of people dispossessed of land in their own country.' Land is the most precious resource available to man and remains the only hope that the poorest communities in our society have for a meaningful existence. Communities that have no education or commercial skills can only rely on agricultural land for the provision of food, water and homes. For the purposes of rural development and the upliftment of our severely poverty stricken areas, the redistribution of land must take place expeditiously. In light of these circumstances the restitution of land is considered to be most significant form of reparation and yet, in South Africa the process is primarily viewed as a failure.
Recidivism in South Africa: is the South African correctional service corrective?
(University of the Western Cape, 2025) Pitso, Palesa; Mirugi-Mukundi, Gladys
This research investigates whether the systems and procedures in place in the South African Correctional Service are succeeding in the rehabilitation of convicted criminals. South Africa faces a dual challenge with one of the highest crime rates globally and a correspondingly high number of convicted criminals. A significant number of convicted individuals have a history of prior arrests and sentences before their current incarceration. However, the Department of Correctional Services maintains on its website that the procedures in place for the rehabilitation of incarcerated individuals are sufficient for their intended purposes. One would then be of the assumption that the rehabilitation measures proposed by the Department of Correctional Services are sufficient in rehabilitating convicted individuals and that, therefore, there would be no individuals serving more than one prison term in their lifetime.
The role of transitional justice in fostering gender justice for victims of gender-based violence in South Africa
(University of the Western Cape, 2025) Maphorisa, Leano Carol; Nortje, Windell; Munyai, Anzanilufuno
Over the past few decades, various models of transitional justice have emerged across Africa to address the egregious human rights abuses that have occurred during conflicts. However, existing literature on the South African Truth and Reconciliation Commission (TRC) and reparations often overlooks the incorporation of gender justice in the mechanisms. Henceforth, this study scrutinizes the efficacy of transitional justice in promoting gender justice for women victims of gender-based violence (GBV) in South Africa. It posits that the TRC's approach to addressing gender-based violence that transpired amid apartheid has a significant bearing on contemporary rates of such violence. An investigation thereto is done through the qualitative research method for purposes of collecting existing information. By adopting this methodology, the study will further unveil the limitations of transitional justice and the intrinsic factors of GBV, Sexual Gender Based Violence (SGBV) and Violence Against Women (VAW) in South Africa.
Restorative justice in South Africa: how may it transcend the ‘mere sentencing alternative’ status in serious crimes?
(University of the Western Cape, 2025) Philander, Nathan Peter-John; Albertus, Chesné
To effectively address the devastating consequences of serious and violent crimes in South Africa, there is a pressing need for change within the criminal justice system. The criminal justice system has perpetuated the disempowerment and marginalisation of individuals affected by crime, exacerbating their feelings of hopelessness and isolation. Some may argue that the system often deepens their victimisation. It has failed to acknowledge that crime represents a violation of the rights and well-being of individuals on a personal level. It has been stated that the criminal justice system is retributive in nature and focuses on punishing offenders and disregards redress to victims.1 This occurrence can be attributed to the inherent characteristics of a criminal justice system that regards crime as a matter between the state and the accused, relegating the victim to a secondary position as a mere witness. While some may not agree with the aforementioned view, it cannot be gainsaid that South Africa has a criminal justice system which does not inspire the confidence of the public.2 The yearning for a system which takes account of the position of the victim and the perpetrator and seeks to address their needs in a fair manner, is non-existent in most cases.
How far can we go? Assessing the scope of the Legal Professional Privilege in combating money laundering through the Real Estate Sector in Kenya
(University of the Western Cape, 2012) Mwangi, Jackline Muthoni; Fernandez, L.
The Kenyan government recently passed a law, the Proceeds of Crime and Anti- Money Laundering Act) (PCAMLA), aimed at combating money laundering. The enactment of the law underlines Kenya's avowed commitment to adhere to, and give effect to the Financial Action Task Force (FATF) Recommendations. The FATF is an inter-governmental body that was established in 1989 by the Ministers of its Member jurisdictions? Its main objective is 'to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system'." To achieve its objectives, it, in 1990 came up with a set of 40 Recommendations that are today considered the best practices for combating money laundering and the financing of terrorism," To ensure that they remain up to date and of universal application, these Recommendations have been revised four times, the most recent amendments being in 2012.
A reappraisal of the legal definition and protection of child soldiers under international criminal law
(University of the Western Cape, 2025) Mankayi, Akhona
The recruitment and use of children in armed conflict remains one of the most persistent violations of international norms, despite a comprehensive international legal framework which prohibits this practice. The international legal framework spans international human rights law (IHRL), international humanitarian law (IHL), and international criminal law (ICL). While instruments such as the Convention on the Rights of the Child (CRC), its Optional Protocol on the Involvement of Children in Armed Conflict (OPAC), and the African Charter on the Rights and Welfare of the Child (ACRWC) define a child as anyone under 18, the Rome Statute of the International Criminal Court (Rome Statute) criminalises only the recruitment and use of children under 15. This age discrepancy creates a significant legal lacuna that leaves 15 to 17-year-olds in a zone of partial protection i.e no longer shielded under ICL yet still minors under IHRL and IHL. Nowhere are the stakes of this protection gap more visible than in armed conflicts across Africa, where the recruitment of children remains endemic. Despite the empirical reality that African children bear the brunt of these violations, international responses remain inadequate. This mini thesis interrogates the consequences of this normative inconsistency through an examination of leading jurisprudence, including Prosecutor v Thomas Lubanga and Prosecutor v Dominic Ongwen before the International Criminal Court (ICC), Prosecutor v Charles Taylor at the Special Court for Sierra Leone (SCSL), and Uganda v Thomas Kwoyelo before the International Crimes Division of Uganda (ICD). It seeks to demonstrate how divergent interpretations by the ICC, tribunals and domestic courts, reinforce the marginalisation of older child soldiers and expose the fractured state of the international legal framework. These inconsistencies undermine the best interests of the child principle and perpetuate impunity for recruiters who target children aged 15 to 17. This mini thesis contends that the failure of states and international institutions to prevent child recruitment is inextricably linked to their failure to prioritise prevention and uphold core child rights principles. The mini thesis advocates for the harmonisation of ICL with broader child rights frameworks, and calls for a reconceptualisation of child soldier protections, one that ensures the distinct vulnerabilities of all children are meaningfully recognised and protected in law and in practice.
Evaluating the right to primary healthcare of transgender inmates in South Africa
(University of the Western Cape, 2026) Adams, Nicole Bernice
The right to healthcare of inmates remains a grave problem in South Africa. This is due to limiting factors such as overcrowding, and physical violence. Because inmates are in correctional facilities, they are custodians of the State, and the State bears the duty to care for them in a manner that does not violate their constitutional rights. The Constitution, read with legislation such as the Correctional Services Act and the National Health Act contains provisions that protect the right to healthcare of all inmates. This right to healthcare extends to transgender inmates as well. Transgender inmates have the right to primary healthcare in terms of South African legislation, but this right is not adequately realised as it is threatened by structural, interpersonal, and individual barriers which limit access to healthcare. The International law framework, which includes the United Nations Standard Minimum Rules for the treatment of prisoners (Mandela Rules), the UN Basic Principles for the Treatment of Prisoners and the Yogyakarta Principles on the Application of International Human Rights law, sets minimum standards, that when read together, creates the right to primary healthcare for transgender inmates. South Africa, however, are yet to implement sufficient policies based on this international law framework. Despite domestic and international law safeguarding the right to primary healthcare of transgender inmates, there is a clear disjunction between the law and the reality within correctional facilities; such right to primary healthcare has not been adequately realised and fundamental change has not stemmed from legislation. This mini-thesis is therefore aimed at investigating what the primary healthcare needs of transgender inmates are and whether South African legislation, policies and case law adequately safeguard the right to primary healthcare of transgender inmates.
To be an impimpi or not to be? A legal analysis of whistleblower protection in South Africa
(University of the Western Cape, 2025) Nelson, Joshua
In South Africa, disclosing information could result in a whistleblower losing their job, tarnishing their reputation, or worse, be assassinated. Whistleblowers who make protected disclosures, often referred to as impimpis and condemned as rats, strive to bring about constructive change. Typically, the act of whistleblowing comes at great cost. To ascertain whether the current legal framework sufficiently protects individuals who expose wrongdoing in the public and private sectors, this mini-thesis critically examines the legal protections available to whistleblowers in South Africa. This mini-thesis further delves into the relationship between corruption and whistleblowing, contending that persons find it challenging to make protected disclosures due to the weak enforcement of legislation and the fear of retaliation. Important recommendations to aid any gaps or shortcomings in South Africa’s current legislative framework will be made by analysing the legal frameworks and instruments of whistleblower protection at the international, regional and domestic levels. To further support this mini-thesis, a comparative country study of the United Kingdom and Ireland will be utilised to recommend any amendments to strengthen the current legal framework in South Africa. This mini-thesis attempts to address any shortcomings to ensure that whistleblowers receive sufficient protection.
A critical appraisal of the new provisions in the child justice amendment act 2019 relating to the criminal capacity in South Africa
(University of the Westerv Cape, 2026) Aurakeasamy, Carmine
When children contravene the law, especially very young children it is imperative that as a society we do not only view them as criminals in isolation, this unlawful conduct is often indicators of potential vulnerability they have been exposed to, which increased the likelihood of them engaging in criminal behaviour. By virtue of their inherent developmental immaturity, children often do not understand the far reaching consequences of their actions and it is imperative that when they contravene the law, they stand before a justice system that recognises their vulnerability, protects them from premature criminalisation, safeguards their rights as children first and holds them accountable for their unlawful conduct by means of proportional responses, instead of exploiting their vulnerability through means of unfair procedures and inconsistent application of the law. The minimum age of criminal capacity is considered the gateway mechanism through which children are either excluded from or subjected to the juvenile justice system. It determines how juvenile offenders are treated by the law and what the most appropriate responses are in light of their developmental capacity. International and regional children’s rights instruments established the foundational frameworks for the minimum age of criminal capacity and the principles that must be entrenched in juvenile justice systems, which have influenced the recognition of children’s rights within the juvenile justice system in South Africa. However, in light of subsequent recognition of children’s progressive development, international frameworks have since established more progressive standards in juvenile justice.
Domestic prosecution of international crimes: A case study of the Thomas Kwoyelo trial before Uganda’s international crimes division submitted
(University of the Western Cape, 2026) Gobile, Bonga
The prosecution of international crimes in Africa reflects the principle of complementarity found in the Rome Statute of the International Criminal Court (Rome Statute). This principle empowers states parties to prosecute international crimes at the domestic level, without requiring the International Criminal Court (ICC) involvement. Uganda’s creation of the International Crimes Division (ICD) in the High Court in July 2008 reflects its readiness to apply the Rome Statute domestically and tackle atrocities arising from the conflict with the Lord’s Resistance Army (LRA). This study employed a qualitative desktop methodology, combining doctrinal legal analysis, case study examination and review of primary and secondary sources including statutes, case law, academic literature and institutional reports. The Thomas Kwoyelo case, the first to be prosecuted by the ICD, serves as the central case study to evaluate Uganda’s efforts in implementing international criminal justice standards at the domestic level. The findings reveal that while Uganda’s ICD demonstrates a proactive approach to accountability, its effectiveness is undermined by political interference, procedural delays and limited institutional capacity. The Kwoyelo trial highlights both opportunities such as victim participation and the domestication of international law and challenges, including inconsistencies in applying the Rome Statute, reliance on outdated legislation and tension between punitive justice and Uganda’s restorative traditions. The thesis concludes that Uganda’s experience provides the need for legislative reform, stronger institutional investment and enhanced regional cooperation to ensure fair and effective domestic prosecutions of international crimes in Africa.
The expungement of criminal records in South Africa: a constitutional analysis of section 271b(1) of the criminal procedure act 51 of 1977.
(University of the Western Cape, 2025) Moses, Lindzay
The expungement of criminal records in South Africa: A constitutional analysis of section 271B(1) of the Criminal Procedure Act 51 of 1977. Many inhabitants of South Africa have criminal records. The exact amount is unknown, but it has been estimated to exceed 1 million. Section 271B of the Criminal Procedure Act 51 of 1977 provides certain instances in which a criminal record may be expunged. This study unpacks the questions of why section 271B(1) only applies to certain minor offences; how the differentiation affects the rights of persons who were convicted of minor offences but are not eligible for expungement as well as how the provision can give effect to the right of equality before the law. This study intends to indicate that the current expungement legislation is flawed and that the differentiation inherent insection 271B is unjustifiably discriminatory and therefore not in accordance with the Constitution.
Religion and crime: the difficult choice between punishment and forgiveness
(The University Of the Western Cape, 2026) Siembo, Aisha Bilhah
This thesis examines the complex tension between punitive justice and restorative forgiveness within Christian and Islamic traditions, focusing on how this theological dilemma manifests in contemporary criminal justice contexts. While religious teachings in both traditions advocate for forgiveness and redemption, they also recognize the necessity of justice through punishment. This study investigates how this inherent conflict creates practical challenges for legal systems seeking to incorporate religious principles. Through a comparative analysis of Christian and Islamic theological frameworks regarding sin, justice, and redemption, and an examination of four case studies—Criminal Law Response to Shamanism, The Janus-Faced Clergy Crimes, Cruelty against Leniency, and Predictors of Religiosity among US Prisoners—this research demonstrates that the religion-crime nexus is neither straightforward nor consistent. Findings indicate that religious influence on criminal behavior and justice responses depends on contextual factors including interpretation, community dynamics, and institutional structures. The study concludes that while religious frameworks offer valuable insights for restorative justice approaches, their implementation requires nuanced consideration of legal, ethical, and constitutional boundaries. Recommendations include developing faith-sensitive criminal justice practices that respect religious diversity while maintaining legal neutrality and equality.
An evaluation of the judicial interpretation of the term ‘exploitation’ in the prevention and combating of trafficking in persons act 7 of 2013
(University of the Western Cape, 2025) Dube, Leo Xolani
This research critically examines the inconsistent and vague judicial interpretation of the term exploitation in the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (the Trafficking Act). While South Africa has ratified the Palermo Protocol and domesticated its provisions, evidence shows that courts have struggled to apply the Trafficking Act consistently, particularly regarding what constitutes exploitation. The study critically assesses how this inconsistency affects prosecutorial performance, victim protection, and judicial coherence. By using a comprehensive review of doctrinal analysis, the study examines relevant case law, legislative frameworks, and scholarly work to identify key loopholes and/or deficiencies and propose recommendations thereof. Comparative insights from jurisdictions like Ghana, and the United Kingdom, especially Canada, where courts have offered clearer guidance on exploitation and vulnerability in trafficking contexts, help position South Africa’s legal framework in broader regional and global contexts. Therefore, it is imperative to submit that the findings of this research address the need for legal reform and clearer interpretive guidelines to ensure justice for trafficking victims and accountability for perpetrators.

Browse

Recent Submissions