Magister Legum - LLM (Criminal Justice and Procedure)

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

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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).
Exploring corporate complicity in genocide: an African perspective
(University of the Western Cape, 2026) Mahamba Thanyani Charles; Mushoriwa Linda
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
An analysis of the international court of justice advisory opinion on the occupation of the Palestinian territory by Israel
(University of the Western Cape, 2025) Chotia, Ra-eesa Ruwayda
Palestine is the historical land of both Arabs and Jews. The Palestinian people have been subject to Israel’s occupation aimed to minimise Palestinians in their historical land whilst expanding Israeli territory. Palestine has been exposed to ethnic, religious and territorial disputes involving Israel and Arab Nations including Lebanon, Syria, Iraq, Egypt and Jordan. The Israeli-Palestinian conflict has been fuelled by the West including Britain and the United States of America. This is evident in the British promising Palestine to the Jewish people through the Balfour Declaration of 1917, creating a foundation for the formation of the State of Israel. It is also clear in the unwavering support of the United States of America of Israel’s continued occupation in Palestinian Territories. The Advisory Opinion of the International Court of Justice was issued on 19 July 2024 in the Hague deeming the continued Israeli occupation unlawful. The Court found that Israel’s policies and practices constitute a breach of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965. The continued Israeli occupation of Palestine has, therefore, disregarded the right of Palestinian people to self-determination and establishing a solidified statehood. This thesis seeks to provide a critical analysis of the impact of the International Court of Justice Advisory Opinion with regards to the crime of apartheid. It also seeks to explore the various ways in which Israel and its officials can be held accountable for the crime of apartheid. It can be concluded that Israel has subjected the Palestinian people to policies and practices resulting in a modern-day apartheid.
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.
The international criminal court judgment in the prosecutor v. Dominic Ongwen case: a critique.
(University of the Western Cape, 2024) Mbombo, Thandolwethu Miranda
The use of Restorative justice or Traditional justice mechanisms in Uganda was introduced as a way of reconciliation, accountability, and reparations after the mass atrocities committed by the Lord’s Resistance Army in Northern Uganda. The Juba Peace Agreement was established to pledge the use of both International Criminal Law (ICL) and Traditional Justice Mechanisms (TJMs) in Northern Uganda as part of the foundations of accountability and reconciliation after the conflict. However, this agreement was futile as arrest warrants had already been filed against the top leaders of the LRA before the agreement was signed. Dominic Ongwen was the only one amongst the 5 top commanders of the LRA who was tried and convicted by the International Criminal Court (ICC). In February 2021 the ICC found Dominic Ongwen guilty of 61 counts of war crimes and crimes against humanity for his involvement in the atrocities committed by the Lord's Resistance Army. The objective of this thesis is to critique the court's ruling, starting with its perceived failure to holistically consider the appropriateness of Traditional Justice Mechanisms (TJMs), Dominic Ongwen’s dual status as both a victim and perpetrator and the influence of spirituality in the crimes he committed. Furthermore, it aims to address the question of whether the ICC was the best forum to try Ongwen.
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.The right to legal representation has been recognised in South African statutes from as early as the beginning of the Nineteenth Century.3 The Criminal Procedure and Evidence Act 31 of 1917 (CPEA), for example, referred to a defendant’s right to legal assistance. In section 97 of the CPEA, an accused was afforded access to their legal counsel during the pre-trial stage. Similarly, the right to legal assistance was adopted in our present-day Criminal Procedure Act 51 of 1977 in section 73 (1) that entitles an arrestee, the assistance of their legal adviser from the time of arrest. However, for the indigent accused the accessibility to legal representation during the pre-trial stage is usually illusory. Prior to the inception of constitutional democracy, access to legal representation for the vast majority of South Africans was, sadly, inadequate. The Legal Aid Board provided limited judicare service legal representation, dependent on a means test, that left the majority of applicants unrepresented.4 Our constitutional democracy, however, brought about a significant change to the accused persons’ right to legal representation. Section 35 of the Constitution5 unequivocally confers the right to legal representation to an accused person.
Considering a single anti-corruption agency for South Africa
(University of the Western Cape, 2025) Morris, Liesl Edith
In recent years, concerns about corruption have increased in South Africa. Although corruption is widely discussed, less focus is placed on the anti-corruption agencies and their efficiency in countering corruption. These agencies are established in terms of legislation to prevent, combat, investigate and prosecute corruption in line with international and regional instruments and domestic legislation. Though the approach is a multiple-agency approach, over the years, some agencies were established, re-designed and others done away with. The question is whether the current anti-corruption agencies are still efficient in fighting corruption in line with international standards. The proposed standard is that ACAs should be independent, specialised, staffed, and have sufficient resources to meet their roles and responsibilities. The focus of this dissertation is to assess the efficiency of specific anti-corruption agencies in South Africa. This dissertation hopes to contribute to a better understanding of what a model anti-corruption agency is and how the agencies in South Africa measure against that model. The analysis looks at the mandate and discusses the strengths and weaknesses of the agencies. The strengths include the legal framework that provides the ACA with its mandate and powers and its independence and public collaboration. The weaknesses include political interference, insufficient legal framework and resources as well a lack of public trust. It is recommended that a single agency should be used in South Africa.
How does the law on expungement of criminal records affect offender reintegration in South Africa?
(University of the Western Cape, 2024) Mahlasela, Khanyisa
South African legislation, particularly the Child Justice Act 75 of 2008 and Criminal Procedure Act 51 of 1977 (as amended by the Criminal Procedure Amendment Act 65 of 2008), allows for the expungement of certain criminal records, to mitigate the long-term consequences of a criminal record on an ex-offender’s life. This paper examines how the law on the expungement of criminal records, obtained post-1994 impacts offender reintegration in South Africa. While expungement of criminal records offers a second chance to ex-offenders, the process is often hindered by procedural barriers and uneven application of legal provisions. This study assesses whether the expungement process supports or undermines successful offender reintegration and identifies the necessary measures to enhance its efficiency. The paper argues that a more structured and user-friendly system is crucial to achieving meaningful reintegration of ex-offenders in South Africa.
The use of pre-sentence reports in the deterrence of drug-related gang activity in South Africa
(University of the Western Cape, 2025) Dart, Chinique Elizabeth
There are several outside influences that impact the criminal conduct of an offender. Pre-sentence reports must be used where the offender is to be properly and effectively rehabilitated, this is a key consideration. The only way to successfully implement rehabilitative measures is to examine all the circumstances that led to the crime. This paper is centred on the judiciary’s potential to take action and compel the use of pre- sentence reports not only as a deterrent to gang activity but also as a method of upholding the principles of sentencing. It is challenging to disregard the potential impact pre-sentence reports may have on the offender and the community they are endangering. There will be a further discussion as to what the legal system and specifically the judiciary can do, to stop gang violence and the ingrained “an eye for an eye” maxim. Psychological and societal factors influence the urge for survival in South African gang activity. The responsibility of the judiciary to reduce the offenders’ capacity and need for using violence to establish dominance and power over their communities, will be explored. By denying the significance and influence of pre-sentence reports, one is merely supporting the idea that prisons are training grounds for criminals. A pre-sentence report’s possible preventative authority will be discussed. This issue extends beyond the convicts’ rehabilitation since it also involves the need for retribution for those who suffer in gang-infested regions. The question to be answered is whether the pre-sentence reports are being used effectively.

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