Magister Legum - LLM (Criminal Justice and Procedure)

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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.
Considering a Single Anti-corruption Agency for South Africa
(University of the Western Cape, 2025) Morris, Liesl E
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.
A Critique of the International Criminal Court’s Approach to Reparations for African Victims Of International Crimes.
(University of the Western Cape, 2024) Dlamini, Bongani Maxwell
When the Rome Statute of the International Criminal Court was adopted on 17 July 1998 and came to effect on 2 July 2002, it established a platform for bringing justice to victims of international crimes. The Rome Statute brought a distinct framework which provided protection and participation of victims including the award of reparations to remedy the harm they have suffered. Article 75(1) and (2) spell out the mandate entrusted to the International Criminal Court (ICC or the Court) to advance principles regarding the granting of reparations by the Court. The article further gives power to the Court to award orders of reparations against convicted persons. The mandate of the Court to award reparations is an important aspect especially for African victims against whom the international crimes of genocide; war crimes; crimes against humanity and the crime of aggression as provided for in the Rome Statute; have been perpetrated. However, the implementation of the mandate of reparations for victims seems to be encountering a number of challenges that include the identification of the victims in different circumstances and other substantive factors. This research seeks to establish how well the task of reparations has been operationalised in practice by the Court by examining the five cases that the Court has so far awarded reparations in.
Criminalising illicit enrichment to combat economic crime in South Africa
(Universty of the Western Cape, 2024) Nonkula, Simvile
Prosecuting corrupt public officials in South Africa is a difficult task, in part because they gain enormous fortune from their access to public monies. Because of their powerful positions, their wealth has reached unparalleled levels. However, a significant amount of their wealth and assets appears to be disproportionate to their legal income. This research investigates whether criminalising ill-gotten money could improve the chances of successful prosecutions. Examining whether there is adequate evidence to prove their involvement in corrupt activities and then criminalising their hidden disproportionate riches may greatly contribute to successful prosecution. This study examines the criminalisation of illicit enrichment, its relevance in the South African legal system, and the issues that it raises. This paper also explains why criminalising illicit enrichment is vital in South Africa and how it can be done without compromising the constitutional rights of people accused of the offence. The research accomplishes this by assessing several countries that have adopted and implemented this strategy because they regard the crime of illicit enrichment as a beneficial instrument for battling corruption.
The socio-economic impact of land reform on women’s rights to access land in South Africa.
(University of the Western Cape, 2024) Genu, Thabile Rose
The Minister in the Presidency, Dr. Dlamini-Zuma, stated in her 2018 land reform dialogue that development in the absence of women is bound to be hollow. The purpose of land reform is to create and enhance sustainable development of the people, and without a proper and well-oiled redistribution programme, it will impact negatively on the economic development of the people. This dissertation aims to review the impact and application of legislation when it comes to women’s access to land and ending gender inequalities. Property is a broad concept that includes the right of access to land for agricultural and residential purposes. This dissertation will therefore outline the challenges facing women in accessing land, considering the historical context of legislations and its impact on South Africa. It will unpack what international legal frameworks say on inequalities and women’s rights to access land. Most of the country’s landless population are poor women, so an effective land reform programme must recognise the centrality of women’s needs and interests. The dissertation will examine the advancement of women’s land rights from 1994 to date. Land reform is one of the many priorities of the post-apartheid government in South Africa, but the question is whether land reform has been beneficial to black women, the most marginalised group in society. The paper further aims to look at the socioeconomic impact of land reform on black women in South Africa.
Assessing the protection of the right to education during the covid-19 pandemic in Botswana
(University of the Western Cape, 2024) Tyala, Yolanda
Background: The right to education is an empowering right that allows one to uplift oneself and integrate into society. Education is a fundamental tool for economically and socially disadvantaged adults and children to overcome poverty and acquire the resources they need to fully engage in their communities, making it an empowering right. Education is crucial for several reasons, including the empowerment of women, the safeguarding of children from hazardous and exploitative labour and sexual exploitation, the advancement of democracy and human rights, environmental preservation, and controlling population growth. Once this right is limited, it prohibits one from fully enjoying other fundamental human rights. Education is an essential instrument for reducing poverty and is fundamental to the satisfactory of all basic needs. For instance, a person who is denied access to education might not be able to gain the information and skills required to find work or make enough money to survive. This may result in a lack of access to fundamental human rights like food, water, and housing. In essence, these people become impoverished because they were unable to acquire the education necessary to teach them certain life lessons, which eventually creates a vicious cycle which impacts the children they leave behind. Education is also necessary for the development of critical thinking abilities and the capacity to actively engage in democratic processes.
Demystifying the ‘movement’ element in the prevention and combating of trafficking in persons
(University of the Western Cape, 2024) Tshikota, Ndivhuwo
This study addresses the misconception that human beings have to be 'moved' in order to be trafficked. Many scholars refer to ‘movement’ as a prerequisite for human trafficking to occur. For example, scholars like Rebecca Walker, Elsa Oliveira and Isabel Magaya, appear to be in agreement that human trafficking is an offence which occurs when three minimum conditions exist, namely: (1) the person should have been moved (2) by means of force or coercion and (3) for the express purpose of being exploited. Africa Check, an organisation that inter alia focuses on checking facts to ensure that the public is provided with accurate information regarding important issues, also defines human trafficking and provides that it usually relates to the movement of people, against their will, for purposes of exploitation that is often of a sexual nature. This definition, although it has merit, does not reflect the various other purposes for which persons are often trafficked. It unfortunately, also affirms the requirement of ‘movement’ in relation to human trafficking. This study contends that if the anti-human trafficking units, the national and international courts and the justice system continue to define the heinous offence of human trafficking in this manner, it may result in many victims falling through the cracks. To explain, it is quite common, in South Africa for example, for persons to be exploited in the same manner as those whom the law classifies or regards as victims of human trafficking, but for the fact that they are not moved across provincial, national or international borders.
The effect of corruption on the human rights of refugees in South Africa
(University of the Western Cape, 2024) Scholtz, Taryn
This research paper focusses on the human rights protection of refugees in South Africa and the possible effect that corruption has on the exercise of those rights. This research paper will examine whether there is a link between such dishonesty and crime in governmental bodies, and the failure to enforce basic human rights of refugees. If so, what legal position is required to rectify and overcome the effects thereof? In other words, is the current legislation sufficient to combat possible corruption and to ensure the enforcement of rights of refugees in South Africa? Are there sufficient resources to enforce the Bill of Rights? Of even greater importance, what can or is being done to improve the status quo? This research claims that whilst the legislation is adequate, there are problematic issues with the implementation and enforcement of those rights. A possible factor is that there is not sufficient compliance regulators to protect refugees in South Africa. A further assertion is that South Africa is not doing enough to assist refugees, and to ensure equal protection of the law for all human beings. This research paper aims to investigate and expose the gaps in the current law, which possibly creates opportunities for corruption, and could result in the violation of the human rights of refugees.
Towards an improved framework for regulating gender-based violence in South Africa
(University of the Western Cape, 2024) Roux, Pearlin; Nortje, Windell
This mini-thesis critically evaluates South Africa’s ongoing gender-based violence (GBV) crisis and assesses the sufficiency of its legislative responses. The study opens with a contextual overview of GBV, underscoring the urgent need for targeted intervention to address this pervasive issue. Through a historical and theoretical lens, it examines how South Africa’s apartheid legacy and entrenched patriarchy have contributed to a societal landscape where toxic masculinity and GBV are prevalent, thus highlighting the enduring impact of historical factors on present-day gender and violence dynamics. Subsequently, the thesis provides a detailed analysis of the current legal framework addressing GBV in South Africa, questioning its effectiveness in protecting victims and deterring offenders. By reviewing key legislative provisions, it identifies critical gaps and weaknesses that may impede enforcement and hinder victim protection. Additionally, the study evaluates the GBV reporting process, public awareness levels, and the responsiveness of law enforcement agencies, especially the South African Police Service (SAPS), to assess whether these systems effectively support victims and promote justice. By addressing the identified gaps and proposing targeted reforms, this research aims to contribute to the development of a safer, more equitable society for all genders in South Africa.
An analysis of the human rights abuses against minority groups and the prospects of transitional justice in post–Mugabe Zimbabwe
(University of the Western Cape, 2024) Makoni, Tinashe; Iyi, John-Mark
Reports indicate that between 1980 and 2017, Zimbabwe experienced widespread and escalating human rights violations under the leadership of the late Robert Mugabe and his party. Amnesty International and Human Rights Watch, among other organizations, have documented numerous violations, including the infringement of the right to shelter, freedom of assembly, and access to justice. Minority groups, such as the Ndebele tribe, women, children, and the LGBTQ community, have been particularly targeted by this oppressive regime. This study focuses on the experiences of minority groups in Zimbabwe. The main challenges faced by Zimbabwe include a culture of impunity and a compromised judiciary, which have perpetuated human rights abuses. Genuine reforms are necessary to address this issue effectively. In 2017, Mugabe was overthrown by a military coup, marking a new era and bringing hope for a better Zimbabwe among both domestic and international communities. The subsequent government, referred to as the "new dispensation," saw the installation of a new President but with familiar faces in power. This study examines the hardships endured by minority groups over the years and explores the events leading up to and following Mugabe's ousting.
Evaluating the effectiveness of the South African criminal justice system to prosecute homophobic rape
(University of the Western Cape, 2024) Malgas, Kirby; Chinnian, Karin
In a heteronormative society, homophobic rape is said to be a “cure” for violating traditional gender representations, which is being anything other than heterosexual. Sexual orientation or gender identification is related to one’s identity. Therefore when someone is harmed because of their identity, such a harm should be deemed as a human rights violation. The Constitution of the Republic of South Africa provides its citizens with protection from discrimination on the basis of gender and sexual orientation, as explicitly mentioned in section 9(3) and (4) of the Bill of Rights. Section 9(4) in particular emphasises that national legislation is obligated to prevent or prohibit unfair discrimination. Homophobic rape is a discriminatory act as it focuses on victims of a particular characteristics or identity, this type of conduct can be recognised as a hate crime. Hate crimes are not specifically recognised within South African legislation. Is this omission aligned with the aims and values of our constitution? This will be the core issue that will be addressed within this thesis. A further study on the interpretation of other relevant legislation will be completed to determine whether it can be used to prosecute hate crime such as homophobic rape, or whether the law is in need of amendment and development to do so justifiably.
Reducing recidivism in South Africa: towards a needs-based approach to the rehabilitation of offenders
(University of the Western Cape, 2024) Marshall, Tasne Verna; Nortje, Windell
The Department of Correctional Services (hereafter, DCS) rehabilitation programmes and treatments frequently address one issue while ignoring others. Therefore, although existing rehabilitation programmes aim to prepare the offender for reintegration into society, these programmes frequently concentrate solely on one facet of an individual’s challenges while overlooking the complexities of their issues and any accompanying disorders they may have. This one-size-fits-all approach is detrimental to offenders striving to break the cycle of release and re-arrest. When attempting to reintegrate into society, prisoners encounter several psychological and social issues which contribute to high recidivism rates. Reducing offenders' high recidivism necessitates concentrating on sociodemographic factors as well as providing offenders with a range of rehabilitation programmes tailored to their unique needs.
A critical analysis of the laws which affect the size of the remand detention population in South Africa
(University of the Western Cape, 2024) Davids, Gidean Zion; Albertus, Chesne
Background: The term ‘remand detainee’ means a person detained in a remand detention facility awaiting the finalisation of their trial. Such person has not commenced with serving a sentence or is not already serving a prior sentence. Remand detainees have a unique status, in that they are presumed innocent (if they have not been convicted yet) and are protected by certain rights that do not apply to sentenced offenders. These rights will be discussed later in this chapter. A bail application of an accused person should be seriously considered by the courts and in principle such decision should not easily lead to remand detention where bail is not a just option. Put plainly, when the courts cannot grant bail to the accused, detention should not be the automatic means to ensure the accused’s attendance at his/her trial. There are after all various ways in which the attendance of the accused can be secured at his/her trial.5
A critical analysis of some of the complexities of implementing transitional justice in Sudan after the genocide in Darfur
(2023) Abdalsllam, Hajer Musa A; Iyi, John-Mark
In recent decades, the lives of millions of civilians have been devastated in the Darfur region in western Sudan, by the attacks of the militia Janjaweed, with the support of the government army under the supervision of senior officials, including former President Omar al-Bashir. As a result, the Sudan Liberation Movement Army (SPLM/A) and Justice and Equality Movement (JEM) were founded in 2003 to fight the government of Sudan and its militia to stop attacks on civilians and restore political stability to the Republic of Sudan. The conflict caused massive human rights violations classified as crimes against humanity in forms of murder, mass rape, mass displacement of civilians and burning etc. After Sudan's great revolution led to a regime change in 2019, transitional justice in the Darfur region continues to face huge challenges.
Peacebuilding and justice in conflict: the imperative for transformative justice in the post-war reconstruction of Chad
(University of the Western Cape, 2023) Badewa, Adeyemi Saheed; Iyi, John-Mark
The fault lines in the implementation of transitional justice mechanisms have posed enormous challenges to peacebuilding, reconciliation, and reconstruction in many postconflict societies, particularly in the Global South. This illustrates the complex nature of Chad's conflicts (since 1965), its deep-seated political instability, and armed intervention, worsened by the lack of justice for victims of repression and social injustice. Regrettably, the flawed processes of peace building and justice in conflict, amidst democratic faux pas have undermined nation building and post-war reconstruction in Chad, with far-reaching regional implications. Dissecting the needs and justice of the average Chadian population from those of the key actors has been problematic in the country's peacebuilding processes. The research advances the imperative for transformative justice as a model for conflict resolution, sustainable peace, good governance, and social justice in the post-war reconstruction of Chad. A qualitative method involving a desk review of secondary data, including theories of peacebuilding and transitional justice is undertaken. Its delimitation was the post-Hissene Habre era (1982-1990) till the present. Although, references were made to the events from the post-independent Chad and the Habre years, as background. Therefore, the study argues that peacebuilding or post-war reconstruction in Chad should be predicated on the long-term transformation processes involving socio-economic, political, and legal justice priorities toward sustainable development. This further highlights the significance of transformative justice in achieving the Sustainable Development Goals (SDGs) and multidisciplinary approach to strategic peacebuilding in fragile states.
ECOWAS court’s jurisdiction and the argument of sovereignty: an evaluation of an impeachment Debacle in Liberia
(University of the Western Cape, 2023) Forkpa, Mulbah; Iyi, John-Mark
The need for a just and orderly society is the essence of retributive justice in domestic courts. Globalisation has left an immense mark on the development of both domestic and international laws. Rule of Law was largely associated with justice from the domestic perspective. Beyond the nation state, the concept of international rule of law now adds a new layer of justice at regional and global levels. What has emerged is a system of accountability to balance individual rights against state actions. On the other hand, state parties have often contested supranational courts’ authority in domestic constitutional matters that border on states’ sovereignty. As a result, the link between supranational courts’ jurisdiction and state sovereignty has become blurred, complex, and controversial. In nearly all international litigation, the world has seen varying analyses with respect to the nexus between the exercise of jurisdiction by supranational courts over states in constitutional matters and the constitutional duties of states’ judiciaries to serve as the final arbiters of their constitutions. In the wake of these controversies, the view is popularly held that external interference in the affairs of states as they exercise their constitutional duties amounts to an assault on their sovereignty. The exact opposite of that argument says that a state has accepted to lower its sovereignty to a supranational body by the very fact that it contracted to become a party to a treaty body. The debates even become complex where states become subject to enforcement against themselves owing to the outcome of supranational rulings. Where these rulings are popularly resisted, they simply become historical documents relegated to shelves for academic purposes. The purpose of this study is to assess whether the Economic Community of West African States Community Court of Justice (ECCJ) is justified in the exercise of jurisdiction over complaints of human rights violations that grow out of a state’s exercise of its constitutional duties. The study considers the scenario of Justice Kabineh Mohammed Ja’neh, an impeached Associate Justice of Liberia
Adopting memory and truth as non-judicial approaches to transitional justice in Cameroon
(University of the Western Cape, 2023) Ewi, Gilbert Bua; Mark Iyi, John
The right to an effective remedy for victims of mass atrocities and the massive human rights abuses perpetrated in intra-state conflicts remains weak in international law. This is more so when such conflicts involve a ruling government and a section of its population. A host of substantive and procedural legal issues prevent victims from being able to seek redress in national and international courts. This problem is particularly acute where victims seek redress for the abuses perpetrated by the regime’s military and other paramilitary forces in connivance with law enforcement personnel, loyal to the regime in power. The nature of these conflicts, full of the regime’s absolute power over the judiciary, the paramilitary and military forces, the gendarmerie and the police force, makes it difficult to hold the regime accountable for such human rights abuses. This doctrinal research seeks to critically examine and assess other transitional justice measures and then ascertain the effectiveness of the non-judicial mechanisms of memory and truth in a bid to achieve sustainable peace and reconciliation in the conflict-torn state of Cameroon. The research seeks to examine the parameters of an effective remedy under international law and then proceeds to assess the concept of memory and truth as a transitional justice mechanism offering human rights-compliant remedies geared towards achieving sustainable peace when deployed in the Cameroonian conflict.

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