Browsing by Author "Omar, Jameelah"

Now showing 1 - 11 of 11
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    Burying the Ghosts of a Complainant’s Sexual Past: The Constitutional Debates Surrounding Section 227 of the Criminal Procedure Act 51 of 1977
    (2010-12-17) Omar, Jameelah; Smythe, Dee
    “It has been said that the victim of a sexual assault is actually assaulted twice- once by the offender and once by the criminal justice system.”1 South Africa’s rape shield provision is contained in section 227 of the Criminal Procedure Act.2 The purpose of its enactment is to protect a complainant in a sexual offence matter from secondary victimisation during the trial as far as possible, by restricting the type of evidence that is admissible and the circumstances under which such evidence can be found to be admissible. This rationale has come under attack for its effect on the fair trial rights of the accused. There has been no challenge to the constitutionality of section 227 before a court yet. However, there are numerous rumblings of discontent at the consequences of a provision that restricts evidence that could be necessary to prevent a wrongful conviction. This paper seeks to consider the constitutional debates surrounding section 227 and to determine whether, to the extent that they may prove to be constitutionally problematic, the potential constitutional challenges are justifiable under a limitations analysis. It is impossible to engage with the constitutionality of section 227 without first discussing the rationale behind rape shield laws in general. The structure of the paper is therefore as follows: firstly, the history and purpose of rape shield laws will be investigated, and secondly, the history of section 227 under South African law will be discussed.
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    Criminalising cannabis in South Africa: a history and post-Prince discussion
    (2021) Weihrauch, Ronja; Omar, Jameelah
    This thesis circles around the history of the criminalisation of cannabis as well as its decriminalisation around 100 years later. While dagga was cultivated and used by the indigenous tribes long before the first settlers arrived and even remained a legal substance during the colonial period, with the implementation of the first national legislation in 1922, the long history of harsh punishments began. Relating the harsh legislation on dagga to its estimated risks, I ultimately confirm dagga to be the black sheep among drugs, having experienced a racial prohibition. In September 2018, the Constitutional Court partially decriminalised dagga, due to the inconsistency of certain regulations prohibiting the use, possession, and cultivation of dagga with the right to privacy as referenced from section 14 of the Constitution. Emphasising the significant and practical impact of this judgement, possibly positive effects of the decision as well as the newly introduced Cannabis for Private Purposes Bill on the desperately overwhelmed criminal justice system are examined. Concluding, I find that the discourse around dagga most certainly is far from complete but that we have to continue conducting it. Because if history teaches us one thing it is that dagga is here to stay.
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    The doctrine of Swart Gevaar to the doctrine of common purpose: a constitutional and principled challenge to participation in a crime
    (2017) Davidson, Yusha; Schwikkard, Pamela Jane; Omar, Jameelah
    Swart gevaar was a term used during apartheid to refer to the perceived security threat of the majority black African population to the white South African government and the white minority population. The Native Territories Penal Code, transported from English law, assimilated the doctrine of common purpose into South African law. During apartheid, the doctrine of common purpose served as one of many governmental tools to criminalise the black population and curtail the swart gevaar. The development of the doctrine largely occurred during the apartheid-era, whereby the white-ruled judiciary continuously sacrificed legal principles to ensure that the doctrine achieved its' crime control objective. The doctrine was expanded beyond its original scope in the Native Territories Penal Code to encompass two distinct forms of common purpose, namely: common purpose by prior agreement, whether by express or implied mandate; and common purpose in its active association form. In the 2003 case of Thebus and Another v The State, the Constitutional Court declared the doctrine of common purpose; in its active association form, constitutional. The Constitutional Court rejected the appellants' argument that the doctrine infringes an accused's constitutionally protected rights to dignity, freedom and security of persons, and a fair trial including the right to be presumed innocent. The Constitutional Court's finding came as a surprise, as it ignored worldwide condemnation of the doctrine throughout the apartheid regime and Constitutional democratic era. This paper challenges the Constitutional Court's finding and critically examines the doctrine of common purpose in the context of constitutional jurisprudence, general principles of criminal law, and policy considerations.
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    Legal Terminology: Criminal Law, Procedure and Evidence - book review
    (2016) Omar, Jameelah
    Book review of Legal Terminology: Criminal Law, Procedure and Evidence. By Michael Wilhelm Prinsloo, Marietta Alberts & Nina Mollema (editors). Juta Co Ltd. 2015. 662 pp. Price: R650.00 (soft cover)
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    Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?
    (2021) Mazhude, Mandifadza Kurirai; Omar, Jameelah
    This paper covers the criminal law defences of pathological incapacity and non-pathological incapacity in South African law which are used by defendants in criminal cases to refute the element of capacity that is necessary for the court to hold the accused criminally liable. Each defence has its own set of requirements and the result of successfully raising each defence also differs. The aim of this paper is to compare these different requirements and resultant punishments to determine whether those differences are justified in order to ascertain whether it is necessary to have these different requirements or whether it would be more reasonable to have a single set of requirements applying to both considering that both defences give the accused the potential to avoid being held fully accountable for their criminal conduct. Previous work has, primarily, focused on whether the defences in general are justifiable rather than looking at whether the specific contents of the defences, particularly the requirements necessary to raise the defences, are justifiable. To address this gap, this paper shall explore and compare the requirements and principles adopted when these defences are raised, particularly where the burden of proof lies; whether expert evidence is required or not; the tests for each defence; the subjective versus objective approach to capacity and, ultimately, the consequences of a successful defence in either situation. A comparison between the South African formulation of these defences and the Canadian version of these defences is used to discover elements of the Canadian defences that may improve the South African formulations. These comparisons show that there is justification in having different requirements, however, there is room for a consolidation of some of the requirements and consequences to streamline and lend credibility to the defences.
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    Questioning the undefended accused - Practical examples for Magistrates
    (2016) Omar, Jameelah
    A review of DJ Steyn Questioning: The Undefended Accused - Practical Examples for Magistrates. 2nd edition. LexisNexis (Pty) Ltd. 2014. Volume 1A R777.00 (soft cover).
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    Sexual violence and the Criminal Justice System in Ghana: Exploring the issues of victim protection and confidentiality in the court
    (2020) Hutchful, Ebenezer; Omar, Jameelah
    The protection of survivors of sexual violence during court proceedings is as important as the court proceedings themselves, as any mishaps may impact greatly on the well-being and future engagement of these survivors with the criminal justice system. The issue of secondary victimization remains a problem faced by many survivors of sexual violence who try to seek justice for their ordeal. It is against this background that several international, regional and national documents have been enacted with hopes of mitigating the issue of secondary victimizations from the criminal justice system and its actors. The court as an institution within the criminal justice system is established to handle all criminal and civil cases within a defined jurisdiction and as such is charged to handle all cases of sexual violence filed before it. However, the role of the court in protecting victims especially victims of sexual violence is increasingly being questioned. Therefore, the dissertation seeks to explore the issues surrounding the protection of survivors of sexual violence in the Ghanaian court. To adequately explore the issue under consideration, a qualitative research approach was adopted, which entailed on-site observations and interviews. As a case study, the gender court was selected as the site for the research. The findings of the study support a strong argument for an expansive approach from the court and all stakeholders of the criminal justice system, from both structural and legal approaches as well as the need for an attitudinal change to harness the protection of survivors of sexual violence who seek justice for their ordeal. Thus, the findings point to the need for urgent attention to help reduce the risk of secondary victimization in the court.
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    South Africa's rape shield: Does section 227 of the Criminal Procedure Act affect an accused's fair trial rights?
    (2016) Omar, Jameelah
    Rape shield laws are a critical aspect of the protection of rape complainants during the criminal justice process. The rationale of rape shield laws is to protect complainants from having their sexual reputation or behaviour used to reduce their credibility, particularly as the inferences drawn are based on historical prejudices against women, and do not actually assist with the fact-finding role of the court. This article will argue that Section 227 of the Criminal Procedure Act 51 of 1977 aims to finding the correct balance between the protection of the complainant’s rights to privacy and dignity, while upholding an accused’s right to a fair trial, including the right to adduce and challenge evidence. However, the sparse case law related to section 227 raises questions about its successful implementation by courts.
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    The Constitutional application of the Prevention of Organised Crime Act 121 of 1998
    (2022) Prinsloo, Benjamin; Omar, Jameelah
    Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (‘POCA') presents a means for forfeiture of property to the state which was either instrumental to an offence, or the proceeds of unlawful activity, without necessarily proving criminal wrongdoing beyond reasonable doubt. At the advent of POCA the consensus amongst legal commentators was that it could be constitutional, provided that courts remain alive to statutory and common law safeguards to prevent the unconstitutional use of POCA by the state. Over twenty years since POCA's enactment, it appears from a review of its case law that it still sits on the precipice of unconstitutionality. This thesis identifies the key constitutional issues which have arisen in the application of Chapter 6 of POCA. The premise which underlies Chapter 6 of POCA, that a criminal wrongdoer should not be allowed to benefit from their crime, cannot be faulted. What appears from the enquiry that follows is that POCA's use is wider than this premise. That is, POCA's application has gone beyond simply preventing criminals from benefitting from their crimes. In this regard, victims of crime and innocent parties are being subjected to forfeiture in terms of POCA and POCA is being used as a means of civil recovery (even where there is not criminal wrongdoing). What makes this wide use particularly problematic is the fact that POCA makes various inroads into certain Constitutional rights, as are discussed below, on the justification that these limitations of rights are in the pursuance of fighting crime. When these rights are limited for purposes other than fighting crime, the justification falls away. Given POCA's wide use in this regard, its interpretation and application in the future needs to be more narrowly interpreted and constrained, to ensure that individual rights are not unjustifiably infringed.
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    The Unrapeable Black Woman: Understanding The Plight Of The Black Rape Complainant In Contemporary South Africa
    (2024) Albanie, Zethu; Omar, Jameelah
    Despite various research studies on rape investigation and prosecution, as well as the treatment/mistreatment of victims, it remains a concern in South Africa. Victims often hesitate to disclose incidences of sexual violence, and those who do face challenges in being believed or having their cases heard in court. This difficulty arises from the inherent complexity of proving rape, contributing to a pervasive mistrust of rape victims. This issue is particularly troubling for Black women, as the colonial-generated perception of their bodies portrays sexual violence as an expected outcome of their ordinary sexual behaviours, categorising them as supposedly immune to rape. Black women are consequently displaced as victims of rape due to their historic hyper-sexualisation and over-sexualisation. The objective of this thesis is to comprehend the plight of Black rape victims within the criminal justice system. I contend that, due to the myth of the unrapeable Black woman, Black rape complainants must fight for credibility in the eyes of the criminal justice system actors. Stereotypically based judgements continue to negatively impact perceptions and decision-making concerning the rape of Black women. Utilising personal narrative-focused research and sharing my experiences as a Black rape complainant in South Africa, this thesis contends that the criminal justice system's judgements of Black women's rape experiences mirror broader societal attitudes towards rape and race. The study aims to elicit a critical, constructive assessment of the criminal justice system's culture and practices to improve the societal response to victims of sexual violence, thus preventing the miscarriage of justice for Black rape complainants. This study advocates for the decolonisation of the criminal justice system by examining its adherence to colonial ideals. Keywords: Rape, Black women, Unrapeable, Criminal Justice System, South Africa
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    Towards a policy on naming and shaming of sex offenders in Botswana: lessons learnt from South Africa and United States of America
    (2020) Solomon, Kaone; Omar, Jameelah
    Sexual violence is one of the most pressing social and human rights issues facing Botswana today and as a result Batswana have demanded greater justice and punishment for sex offenders. The Government of Botswana have purportedly found the legislative solution for the problem of sexual violence in sex offender registration laws. This dissertation will consider whether sex offender registration laws can be an effective and a progressive solution to the sexual violence crisis in Botswana. This dissertation aims to show that an effective sex offender registration laws are dependent on the creation and maintenance of valid and reliable registers. With underreporting of sex crimes and if crimes are reported, the subsequent withdrawal and low conviction rates the register cannot be effective as sex offenders may never be registered. A comparative study undertaken between the United States of America and South Africa revealed that the register provides minimal benefits while significant resources are required to implement and maintain the registers. The conclusions drawn from this dissertation is that sex offender registers as a standalone intervention is not the most progressive and effective solution to the sexual violence scourge. This is because sex offender registers do not prevent the commission of the offence as the register only come into play once the offence has been committed and the offender is listed in the register. The fight against sexual violence therefore demands more comprehensive strategies and the Government of Botswana should place the prevention of sexual violence at the centre of all strategies, and not at the tail end of a reactive response.