Browsing by Author "Phelps, Kelly"

Now showing 1 - 9 of 9
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    A new sphere of vigilantism in South Africa in the age of social media? Operation Wanya Tsotsi- an analysis of prospects for collaboration with the Police
    (2021) Kral, Svenja Julie; Phelps, Kelly
    There are many studies in South Africa that have analysed the definition of vigilantism with a focus on the historical background of the apartheid era. However, research in the field of vigilantism in South Africa has been lacking since the advent of the internet, even though social media has spawned a new form of vigilantism – online shaming. Considering that online public shaming has become prevalent both globally and locally, the focus of this dissertation is the public exposure of people alleged to have committed crimes. The paper shows that small changes to the method of public shaming could enable collaboration with the police. To illustrate this argument the example of Operation Wanya Tsotsi, an online vigilante group, is used. By examining their Facebook page in light of current criminal law remedies, this paper establishes the extent to which their method is problematic and illegal. In addition, it gives an example of what successful collaboration with the police could look like and underlines the advantages and disadvantages of such collaboration. Ultimately, it concludes that Operation Wanya Tsotsi should focus on legal online work to support the police in the fight against crime.
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    Addressing Sexual Offences in South Africa: Moving Past Rhetoric and Empty Gestures
    (2021) Stander, Abigail; Phelps, Kelly
    There is a plague of sexual violence in South Africa. As a country dedicated to the rights to life, dignity, bodily integrity, privacy and the right to be free from all forms of violence, it is the government's duty to adequately address the rate of sexual offences in the country. The government has not been silent on this issue, but its response beyond issuing strong statements accompanied by long sentences for the few offenders convicted, is lacking. Some important legislative changes have been brought about in the SORMA but without widespread change of social attitudes these improvements are going to have very limited impact. This paper explores why South Africa's current approach towards sexual offences is inadequate and how it should be improved. The first section lays out the background and development of South Africa's sexual offence laws (and laws relating thereto). The myths and stereotypes about sexual offences and their victims that prevailed in our legal system for decades, still persist in the minds of many police and judicial officers today. This has negatively affected how sexual offences are policed in the country. It begs the question of whether victims should be afforded specific rights in sexual offence cases. This section also discusses how mandatory minimum sentences came about as a response to rising crime rates. While the changes to the law have been praised for being more progressive for victims of sexual offences, its actual impact will remain insignificant until procedures for obtaining justice for victims are improved. The next section critiques the current legal framework relating to sexual offences, namely, the SORMA and the Criminal Law Amendment Act 105 of 1997. Legislative changes such as the new definition of rape and the formal acknowledgment of sexual offences courts are promising. However, the establishment of the National Register for Sexual Offenders and the mandatory minimum sentences for rape were poorly researched solutions. This paper argues that since SORMA's approach has not improved the experience of victims in the past 13 years, either duties for police officers in sexual offence cases should be legislated or victims should be afforded specific procedural rights. The final section of this paper discusses feasible options for South Africa to address sexual offences. The first is in the form of structured sentencing guidelines to steer the discretion given to judges in handing down sentences. The second is in the form of prevention strategies. This paper highlights how important it is for the government to start to implement policies that will address the societal norms that allow sexual violence to flourish. The government's only solution cannot be to keep clutching at popular mandatory sentencing. They owe it to the citizens of South Africa to commit to long-term social change initiatives.
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    Challenging challenges : a metaphysical redress of van den Haag's retributive axiom : Unequal justice over equal injustice
    (2009) Traub, Craig Michael; Van der Spuy, Elrena; Phelps, Kelly
    Includes abstract. Includes bibliographical references.
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    Defending women who kill
    (2022) Shaff, Maxine Leslie Georgia; Phelps, Kelly; Moult, Kelley
    This dissertation undertakes a case review of South African court case judgments (between 1994 and 2021) in which women are charged with killing their abusive intimate partners. The dissertation examines how evidence of their abuse is used in respect of legal defences and mitigation of sentence. In addition to analysing the existing legal framework, the paper presents thematic qualitative information drawn from the judgments to show that a number of themes are apparent in the manner in which evidence is brought and dealt with by the courts. For instance, patterns of disregarding evidence of abuse, and a lack of calling for further evidence where needed. In addition to this, judgments often 'play armchair expert' and show lack of sensitivity and compassion to abused women - this is tightly linked with the concept of victim blaming. Other themes include deterrence as emphasised in sentencing, the notion of a turning point during an abusive spell, the rights of the children involved in abusive relationships, and considering motives for retaliation. The paper concludes by arguing that a contemporary approach to private defence, in light of the developments made in the Engelbrecht case, ought to be the way forward in exonerating women of their criminal culpability where those requirements are met.
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    How to Create Monsters? A preliminary examination approach to the role of the social environment in relation to the origin of South African serial killers
    (2021) Wehner, Jana; Phelps, Kelly
    The phenomenon of serial killers is a fascinating topic for readers, as well as for researchers. This dissertation is going to expand the steadily growing stock of literature regarding the origin of serial killers, but with a focus on the social environment. As the social environment differs from country to country, depending on cultures, history, societies, and economic circumstances, it is important to take a South African perspective when studying the social environment of individuals in South Africa. After explaining the different approaches to define the term `serial killer´, this paper provides a solid review of previous research on the origin of serial homicide in South Africa. While presenting the most popular theories on the origin and development of serial killers in South Africa, it becomes evident that the social environment has never been considered to be a factor that might play a role. This paper criticises the fact that an examination of the social environment of serial killers has been absent in previous research on the development of serial killers. Consequently, it makes it its task to examine the social environment of South African serial killers via multiple case studies. Six South African serial killer cases are presented and the social environment of the individuals is explained. Moreover, similarities between the cases and other conspicuities are pieced together and analysed, followed by a discussion on how they might have an impact on a serial killer. Additionally, the paper gives some food for thought on why the social environment in South African townships is so fertile for serial killers to offend and what cultural and historical circumstances might play a role in developing such an environment. Providing incentives for further in-depth research here and there, this research expands the steadily growing body of literature on serial killers from a South African perspective. The paper concludes that the social environment of serial killers is a huge and interesting subject area, with many possible influencing factors that are therefore worth exploring further. Additionally, this paper proposes that the social environment should be taken into account when researching serial killers in general, and especially their origin and development. This paper takes the initiative to research the social environment as an independent factor within the phenomenon of serial killers. It proposes a preliminary examination approach to the role of the social environment in relation to the origin of South African serial killers for the purpose of drawing attention to the importance of including it when researching serial killers to generate a better understanding of the origin of serial killers and the phenomenon in general.
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    Sentencing reforms in a postcolonial society: a call for the rationalisation of sentencing discretion in Nigeria, drawing on South Africa and England
    (2015) Badejogbin, Oluwatoyin Akinwande; De Vos, Wouter; Phelps, Kelly
    This thesis investigates measures to ensure that sentencers introduce proportionality to sentencing and refrain from imposing penalties that infringe constitutional rights. The investigation involves two stages of analysis. First, the thesis examines the socio-historical context in which the practice of punishment evolved in England, South Africa and Nigeria in order to unveil how evolving concepts about punishment regulate or fail to regulate penal severity. Secondly, the thesis examined the normative basis of sentencing in South Africa and Nigeria, both of which are constitutional democracies and former English colonies. The analysis leads to two critical findings. First, Nigeria lacks the rich tapestry of constitutional jurisprudence that South African Courts have developed around punishment. Secondly, neither South Africa nor Nigeria has a structured system for rationalising sentencing discretion, with the result that sentencing can lead to widely disparate and disproportionate outcomes in both countries. The thesis thus proposes that Nigeria adopts constitutional provisions that restrain penal severity, and that it harmonise its pluralistic penal system, scrutinise statutory penalties in the light of constitutional norms, and, drawing on practices in England, develop guidelines that enhance proportionality and parsimony in sentencing.
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    The Constitutional Court gets anal about rape - gender neutrality and the principle of legality in Maysia v DPP
    (2007) Phelps, Kelly; Kazee, Sha’ista
    In Masiya v DPP the Constitutional Court missed the opportunity to address the patently inadequate and unjust common law definition of the crime of rape. The Court had an opportunity to embrace its mandate as guardian of constitutional rights and, in adopting a conservative stance towards the development of the common law, failed to do so. Two points of particular interest that arise from the judgment are considered in this article: the Court's unwillingness to extend the definition of rape along gender-neutral lines; and the impact of the principle of legality on the Courts' ability to develop the common law definitions of crimes. There is no reason in logic or justice for why the definition of rape should be gender- specific. Furthermore, in line with the minority judgment in Masiya, there is no rule of law that prohibits the Court from executing such an extension.