Magister Legum - LLM (Criminal Justice and Procedure)

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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.
Constitutional legitimacy of the Islamic law of compulsory succession within the South African context
(University of the Western Cape, 2023) Sungay, Mohamed Hoosain; Abduroaf, Muneer
The Constitutional legitimacy of the Islamic Law of compulsory succession remains a heavily contested issue since the enactment of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). South African law allows a deceased person freedom of testation subject to common law and statutory limitations. This freedom of testation principle is defined as the “[t]he right of an individual to dispose of his or her property on death as he or she pleases”. Furthermore, the Supreme Court of Appeal stated in the BoE Trust Ltd NO and Others case that this principle is perfectly balanced against constitutional imperatives regarding non-discrimination and equality. It was furthermore stated that this principle subtly forms part of section 25(1) of the Constitution, in that it protects a person’s right to dispose of their assets, upon death, as they wish.
The University of the Western Cape protecting women from intimate partner violence in South Africa: Evaluating whether the state fulfilled its legal obligations during the Covid-19 lockdown
(University of the Western Cape, 2022) Gamiet, Maajidah; Chinnian, Karin
The COVID-19 lockdown regulations in South Africa were put in place to protect its citizens from the spread of the virus, however certain restrictions consequently endangered women. Comparing gender-based violence statistics from 2019 and 2020, this thesis considers whether the protection of women from intimate partner violence and intimate partner femicide in South Africa was a priority in the design of control measures against the spread of COVID-19. It makes use of an interpretation of the international law standard of due diligence that places a duty on the state to protect individuals from violations committed by non-state actors to ensure that human rights provisions (specifically women’s rights) are executed in accordance with the principles of equality and non-discrimination.
War crimes under international customary law: the historical development and the legal issues
(University of the Western cape, 1999) Unseld, Oliver; Fernandez, Lovell
War is characterizedby outburst of primitive, raw violence and has always played an important role in the history of mankind. When states or groups within a state cannot or will not settle their disagreements or differences by means of peaceful discussion, eapons are suddenly made to speak' War inevitably results in immeasurable uffering among people and in Severe damage to objects. l Despite the consequences of ar, states continue to wage wars and groups still take up weapons when they have lost hope of just treatment at the hands of the government. Facing the fact that wars will always occur, states developed a need to lay down rules that seek to mitigate the effects of war. These rules are predominantly included in international treaties. Some of these rules constitute war crimes under international customary law. This dissertation will discuss the historical development and the legal issues of war crimes under international customary law. Discussing all issues conceming war crimes would be beyond the scope of this dissertation. ln some aspects, this dissertation provides just an overview. ln short, the definition of war crimes and their applicability are discussed right at the beginning, as well as the historical development of war crimes before the 20th century. Also the topic "war crimes committed in international conflicts" is not discussed in detail. However, the most important issues that are essential for the understanding of war crimes in general are explained and sufficient information is provided on this topic. The emphasis of this dissertation is focuses on two very important and very actual issues: War crimes committed in non-international (internal) conflicts and individual criminal responsibility for war crimes committed both in international and non-international conflicts.
Implementing the Rome statute of the international criminal court domestically: a comparative analysis of strategies in Africa
(University of the Western Cape, 2003) Olugbuo, Benson Chinedu; Fernandez, Lovell
On 17 July 1998, a total of 120 states voted to adopt the Rome Statute of the International Criminal Court (Rome Statute) 1 in a UN sponsored conference in Rome. The International Criminal Court (ICC or 'the Court') has jurisdiction to try people accused of such international crimes as genocide, crimes against humanity, war crimes and aggression.2 The Court has power to provide redress to victims and survivors of these crimes and some argue that the mere presence of the ICC has a deterrent effect on future dictators and their collaborators. 3 Also the Court has potential to advance the rule of law internationally, for example, by obliging States Parties to investigate and prosecute those indicted, thus strengthening the ability of national jurisdictions to bring to justice perpetrators of these heinous crimes. With the entry into force of the Rome Statue in July 20025 and the election of judges and Prosecutor7 of the Court in 2003, there is need for States Parties to the Rome Statute to enact laws to incorporate the crimes defined in the treaty. Currently, 92 States are Parties to the treaty. 8 The success of the ICC will depend not only on widespread ratification of the Rome Statute but also on States Parties' compliance with obligations under the treaty. For almost every state this will require some change in national law in accordance with existing laws and proceedings in a given legal system.
The enforcement of socio-economic rights in the African human rights system : drawing inspiration from the International Covenant on Economic, Social and Cultural Rights and South Africa's evolving jurisprudence
(UWC, 2003) Mbazira, C; Liebenberg, S
The need to protect human dignity, freedom, and equality paved the way for the development of the concept of human rights, from an idealistic assertion of vague principles to the adoption of the comprehensive international normative system now in existence This includes economic, social, and cultural rights with traces in Germany during Bismarck's reign in the 19th Century2 and the Russian Revolution in the 20th Century.3 With the adoption of the Universal Declaration of Human Rights (UDHR)4 they became universally accepted. ln 1966 two covenants were adopted: the International Covenant on Civil and Political Rights (ICCPR),s and the lnternational Covenant on Economic, Social and Cultural Rights (ICESCR),6 the former being dedicated to civil and political rights, and the latter to economic, social and cultural rights.
Exorcising the antiquity spirit of intolerance : possibilities and dilemmas of decriminalizing sodomy laws in Uganda
(UWC, 2007) Singiza, K; de Vos, P
This dissertation proposes various methods to decriminalize same-sex sexual intercourse as an offense in Uganda. Chapter One introduces the problem of the sodomy laws and how it has recently taken center stage in the struggle for human rights in Uganda. The chapter states the problem, the research questions that are proposed to be answered, the objectives of the study, and its scope and methodology. lt points out the possible limitations and reviews the literature on the subject of gay and lesbian rights. Chapter two analyses how gay and lesbian rights can be given effect through constitutional adjudication by reading protection for sexual minorities into the rights to equality, dignity and privacy that are protected in the Ugandan Constitution into three important rights: the rights to equality, dignity and privacy
The principle of universal jurisdiction as a tool of international criminal justice: challenges for Africa
(University of the Western Cape, 2003) Epimaque, Rubango K.; Fernandez, Lopell
The subject of universal jurisdiction is of great relevance to all who work for human rights. I regard the search for ways to end impunity in the cause of gross violations of human rights as an essential part of the work of my Office and an essential instrument in the struggle to defend human rights... ln my daily work as High Commissloner for Human Rights, I see many situations involving gross, and sometimes widespread, human rights abuses for which the perpetrators often go unpunished, These disturbing trends have given me cause to reflect on the possibilities for alternative means of securing .justice and accountability.
Defining the limits of parliament's powers to intervene in the Exclusive provincial schedule 5 competences in terms of section 44(21of the constitution of south africa act, act no.108 of 1996, With reference to the liquor bill case
(UWC, 2000) Enver, Daniels; Steytler, C
Constitutional law prescribes how power is exercised by the different branches of government and organs of state. ln a federal state or a unitary state in which there is a devolution of power to the regions, the allocation or distribution of specific powers between the center and the provinces is of fundamental importance. Uncertainty about either legislative authority can lead to chaos and instability and threaten the nation's survival. the powers of each branch of government are clearly spelled out in constitutional states, whether federal or unitary. Generally speaking, infringements of one another's legislative powers are not allowed, except under certain clearly defined circumstances, as will be demonstrated later on herein.
The international criminal court and the principle of complementarity: a comparison of The situation in the democratic republic of the congo and the situation in darfur
(University of The Western Cape, 2008) Ofei, P.G.S; Koen, R
The purpose of the lnternational Criminal Court (ICC) is to investigate, prosecute and purush the most serious crimes of international concern. These crimes are genocide, war crimes, crimes against humanity and the crime of aggression.r However, paragraph l0 of the preamble to and article I of the Rome Statute of the ICC provide that the jurisdiction of the court shall be complementary to national criminal jurisdictions. This is confirmed by article 17 of the Rome Statute, 'the core provision in relation to complementarity',2 which states that the ICC is able to investigate and prosecute only situations which states are unwilling or unable to investigate or prosecute themselves
The protection of children from exploitative labour within SADC :Human rights challenges of the regional integration initiative
(University of the Western Cape, 2002) Kaime, T; Lenaghan, P
Childhood is a time for play, for growth, and for discovery. Sadly, for many of the world's children, the reality is different. They are denied their childhood and with it, their opportunity to develop. They are denied education and protection from hunger, and exposed to disease, abuse and exploitation.l The economic exploitation of children is one example of abuse that is prevalent nowadays and one that has been historically pervasive.2 Everyday, millions of children are engaged in work that stunts their development, and interferes with their education, recreation and rest. Such work is called child labour and is unacceptable under intemational labour and human rights law.3 Child labour is a complex and multifaceted issue that defies simple solutions.a lt involves diverse dynamics and factors which include economics, human rights, trade and labour.s Quick-fix measures are thus bound to fail or to exacerbate the problem. Consequently there is need for thoughtful and comprehensive approaches which are guided by the best interests of the child and by a commitment to children's rights. This contribution is an endeavour in that direction.
WWIII? war on women continues!
(University of the Western Cape, 2003) Vezasie, P.N; Van der Poll, L
ln the course of this research paper incidence of sexual slavery, sexual violence and rape during times of war will be examined. The incidence where systematic rape is seen as a weapon of war designed to exterminate a particular ethnic group will be highlighted. lt will be argued that systematic rape can be suitably addressed as a form of ethnic cleansing and a form of genocide within the ambit of international human rights law

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