Magister Legum - LLM (Criminal Justice and Procedure)

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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.
Youth at War: The Impact and Effectiveness of International Laws against Child Soldier Recruitment
(University of the Western Cape, 2025) Allison, Grant
This mini-thesis evaluates how far international law has succeeded in preventing the recruitment of child soldiers. Although numerous treaties, conventions and protocols within international humanitarian, human rights and international criminal law prohibit the practice, the recruitment of children into armed groups and forces remain widespread and consistent. This mini-thesis follows the legal developments from the Geneva Conventions to the United Nations Convention on the Rights of the Child (UNCRC), the Rome Statute of the International Criminal Court (ICC) and the Optional Protocol to the UNCRC, identifying both significant progress as well as ongoing weaknesses. It considers the push factors that drive recruitment, such as poverty, displacement, the lack of education and the impact of war, together with pull factors like promises of safety, access to basic needs, ideological influence and perceived opportunity. An analysis of landmark cases from the Special Court of Sierra Leone and the ICC reveals how these legal standards have been interpreted and enforced. While there has been significant progress, several factors including weak enforcement of laws, limited accountability and permitting children aged 15 to 18 to enlist voluntarily, continues to contribute to inadequate protections. This mini-thesis concludes by recommending measures to close these gaps and to promote a universal and unequivocal straight 18 standard that would provide full and adequate protection for children against recruitment in armed conflict.
The ICC-African union relationship: in the interest of justice, or a continuation of politics by other means?
(University of the Western Cape, 2026) Karikari, Kwaku Agyemang
This thesis examines the evolving relationship between the African Union (AU) and the International Criminal Court (ICC), with a specific focus on issues of head of state immunity, sovereignty, and the principle of complementarity. The study centers on ICC interventions in African countries with weak judicial systems, specifically Uganda, the Democratic Republic of the Congo, Sudan, and Kenya, while also addressing the AU’s growing pushback against the ICC's focus on African leaders. Key themes explored are the principle of complementarity, the legal and political tensions surrounding head of state immunity, and the AU’s demands for reforms. The research adopts a qualitative methodology, utilizing document analysis and case studies to explore the effectiveness of ICC interventions and the capacity of African states to prosecute international crimes domestically. The study analyzes developments including the domestic prosecution of Thomas Kwoyelo for international crimes in Uganda and the African Union's ongoing demand for ICC reforms. It also provides comparative insights through a focus on African justice mechanisms by examining the domestic prosecution of Thomas Kwoyelo in Uganda alongside ICC interventions in Sudan and Kenya, particularly the proceedings before charges against Ruto and Kenyatta were withdrawn. In Uganda, Thomas Kwoyelo, a former commander of the Lord's Resistance Army (LRA), was convicted by the International Crimes Division of the High Court for multiple war crimes and crimes against humanity committed between 1993 and 2005. In Kenya, the ICC initiated cases against President Uhuru Kenyatta and Deputy President William Ruto for their alleged roles in the 2007-2008 post-election violence. However, the charges were eventually withdrawn due to insufficient evidence and concerns over witness interference. Grounded in theories of sovereignty, complementarity and human rights, the research aims to contribute to policy discussions on enhancing the ICC's role in delivering justice while respecting state sovereignty, ultimately offering recommendations to strengthen the international judicial system.
Jurisdiction of the constitutional court in contempt of court matters: critical evaluation of the state capture case
(University of the Western Cape, 2025) Mana, Zuko
The judgment of the Constitutional Court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (Zuma II), 1informs this research paper. However, it is imperative to foreshadow two other judgments that have a factual bearing on Zuma II. These judgments are: Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma (Zuma I), 2 and Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others (Zuma III).
African centre for transnational criminal justice exploring corporate complicity in genocide: an African perspective
(University of the Western Cape, 2026) Mahamba, Thanyani Charles
This mini-thesis explores the evolving relationship between globalisation and Africa’s growing economic integration with the international community, especially through the involvement of multinational corporations. While these organisations have promoted economic development and broadened cross-border relations, they are also subject to criticism for their role in human rights abuses and genocidal activities, a concern that is particularly significant considering Africa's historical background of colonisation. This study adopts a doctrinal approach to examine the inadequacy of current international legal frameworks in holding corporations accountable for such egregious violations. By analysing the Genocide Convention and the Rome Statute of the International Criminal Court, this research highlights the international legal framework’s emphasis on individuals and states, revealing a significant gap in corporate accountability. Through case studies from Rwanda, Sudan, and the Democratic Republic of the Congo, the role of multinational corporations in sustaining economic and political violence is highlighted. Despite evidence of their support for oppressive regimes, accountability for multinational corporations remains limited due to weak regulatory frameworks. The study also explores emerging regional initiatives, such as the 2014 Protocol on the Amendment to the Protocol on the Proposed African Court of Justice and Human Rights (Malabo Protocol), which aims to address corporate responsibility, while highlighting the challenges of the slow ratification process among African states. To combat impunity, the research recommends developing legal policies that align domestic and international law, include transnational litigation strategies, and ensure strong civil society participation. Ultimately, this thesis calls for urgent reforms in international and regional legal frameworks and advocates for stronger collaboration within African legal systems. It argues that these measures can transform Africa from a region of corporate impunity into one of corporate accountability, thereby securing justice for victims of human rights violations and safeguarding human dignity for the future.
Towards an improved framework for regulating gender-based violence in South Africa
(University of the Western Cape, 2024) Roux Pearlin; Windell Nortje
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.
Towards an improved framework for regulating gender-based violence in South Africa
(University of the Western Cape, 2024) Roux Pearlin; Windell Nortje
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.
Interrogating the “Subalternising Potential” of Article 13(b) of Rome Statute of the International Criminal Court
(University of the Western Cape, 2024) Mbadlanyana, Thembani Lucius
This study problematises and critically interrogates the provisions of the Rome Statute— particularly those relating to the United Nations Security Council (UNSC) referral of non-party states to the International Criminal Court (ICC). The study’s preoccupation is on the different ways through which ICC may become seized with jurisdiction over a situation under the Rome Statute. But more importantly, the study casts some critical light on the different “regimes” of co-operation under the Rome Statute. Using the Rome Statute as a “metaphoric” door through which to enter the scholarly debates and discourse on the history, current realities and future outlook of international criminal law; the ultimate goal is to disinter and critically interrogate the ICC’s jurisdiction mechanisms and what seem to be the “subalternsing potential” of Article 13(b) of the Rome Statute.
An analysis of the laws which criminalise sex work in South Africa and the effects thereof
(University of the Western Cape, 2025) Baron, Corinne Chanté
This thesis seeks to establish whether the current criminalisation regime followed by South Africa infringes the constitutional rights of black female sex workers. Black female sex workers are the focal point of this thesis as they are one of the most vulnerable groups in South Africa. Sex workers are one of South Africa’s most marginalised communities and are often plagued by injustices including gender-based violence and exploitation and are left with no legal recourse due to the illicit nature of their profession1. Those brave enough to seek the help of the South African Police Services (SAPS) or the healthcare system are rarely met with a safe environment and find themselves subjected to secondary abuse by those who are sworn to protect and serve.2

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