Browsing by Author "Schwikkard, Pamela Jane"

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    Backwards to the cautionary rule: S v Van der Ross 2002 (2) SACR 362 (C)
    (Juta Law, 2003) Schwikkard, Pamela Jane
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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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    In Defence of the Doctrine of Common Purpose
    (2021) Willis-Smith, Catherine Tara; Schwikkard, Pamela Jane
    The doctrine of common purpose has been subject to much criticism, especially concerning its use under apartheid. However, the doctrine predates the apartheid era and I argue that it should now be recognised as a tool to achieve justice. The constitutionality of the doctrine was confirmed in Thebus and Another v S 2003 (6) SA 505 (CC). Despite agreeing with the outcome, it is my view that the judgment would have been stronger had the Court acknowledged that, by dispensing with the requirement of causation, the doctrine must be subjected to a proportionality inquiry to determine whether there was ‘just cause' to deprive the appellants of their freedom. I argue that depriving persons who engage in joint criminal activity of their freedom is just as it is necessary to ensure crime control and safety in communities and there are no effective less restrictive means available to achieve this purpose. While misapplication of the doctrine is a legitimate concern, this does not make the doctrine itself unjust. It is incumbent upon courts to scrutinise the evidence against each accused and only convict them under the doctrine where a common purpose can be proved. The recent Constitutional Court judgment in Tshabalala v S; Ntuli v S 2020 (3) BCLR 307 (CC) expresses the importance of the doctrine in combating crimes (especially those of a sexual nature) committed by persons acting in concert. The doctrine ensures prosecution of collective criminal activity, and liability thereunder can be avoided where an accused effectively dissociates from a common purpose. It is submitted that the doctrine is a proportionate means to achieve justice and is in fact necessary in a country like South Africa, ravaged by high levels of collective criminal activity.
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    Parole in South Africa : is it a right or a privilege? : the theory and practice of parole in South African Correctional centres with specific focus on the nature of parole under the Correctional Service Act 8 of 1959 (repealed) and the current Correctional Service Act 111 of 1998
    (2009) Moses, Jacobus Johannes; Schwikkard, Pamela Jane
    The principal focus of this research centres around the question whether parole, as it is understood and practised in South Africa, is a right or a privilege. The essential question of this thesis is whether a prisoner acquires an enforceable right to be released on parole after serving the non-parole period or the statutorily-determined minimum period of imprisonment. The focus is on the status of the prisoner and the process relating to his/her continued incarceration in the period starting from when his or her non-parole period has ended to the actual date of his/her release from prison according to the sentence imposed on him by the sentencing judge/magistrate. In addressing this question in a South African context, reference is made, by way of comparison, to the practice of parole nationally, and internationally, including America, Canada, Australia, India, England and the European continent insofar as it falls under the jurisdiction of the European Court of Human Rights.
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    The power to negotiate : examining mandating procedures in the National Council of Provinces and their impact on legislation and other parliamentary processes
    (2016) Whittle, Patricia; Murray, Christina; Schwikkard, Pamela Jane
    This study explores provincial participation and examines (a) how and (b) to what extent negotiating mandates of the respective provinces are taken into account in the legislative processes of Parliament in selected bills in terms of ss 74 and 76 of the Constitution, 1996. It evaluates to what extent current systems, processes, rules and legislation give effect to the will of provinces, as an expression of the views emanating from provincial public participation. The study provides a brief overview of the historic background and evolution of the Parliament of South Africa, followed by a discussion of the constitutional and legislative framework from which the NCOP derives its mandate and a brief comparison of the NCOP to the second chamber of the German Federal Republic, the Bundesrat. The discussion of the Mandating Procedures of Provinces Act, 2008 examines in which ways the Act helps or hinders the mandating processes, drawing on case studies of selected s 76 bills processed before and after the MPPA came into effect. It considers whether the NCOP's public consultation can remedy flawed or inadequate public participation by a department. In the case of constitutional amendment bills that proposes provincial boundary changes, s 74 of the Constitution requires an affected province's approval for such a bill to be passed. It considers whether a constitutional amendment bill can be amended and propose various options for consideration. The conclusion finds that the NCOP gives effect to its constitutional mandate to represent provinces in the legislative and other processes of Parliament with lesser degrees of success in respect of ss74 and 76 bills affecting provinces. It recommends a review and amendment of the MPPA and the NCOP Rules (and where relevant the Joint Rules of Parliament) to enable provinces to have a more meaningful impact on the legislative and other Parliamentary processes involving provinces.
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    The case for assisted dying/euthanasia in specific cases in South Africa with reference to the development of the South African and Canadian Jurisprudence under a human rights political order
    (2022) Brink, Raphael Grant; Cheadle, Halton; Schwikkard, Pamela Jane
    In this thesis, I argue that the present jurisprudence, particularly constitutional law and the common law of South Africa all lend support to the case for decriminalising physician assisted suicide through invoking a right to die with dignity (RDD). This argument is foundationally premised on the clear jurisprudence of the Constitutional Court which sets out the right to dignity and the value of dignity as the touchstone of the South African Constitution. The historical origin and development of the idea of dignity are traversed as well as how this idea found its way to the heart of our constitutional jurisprudence. The study then expounds on the similarities between the South African Constitution and the Canadian Charter of Rights and Freedoms and by comparing each of their Limitations Clauses proceeds to demonstrate how our Constitutional Court may follow analogous principles and reasoning to decriminalise physician assisted suicide by taking a similar approach to that taken in the Supreme Court of Canada. The argument is developed to posit that the South African Constitution with its emphasis on dignity allows for an even more compelling rationale for the decriminalisation of assisted suicide than was available to the Supreme Court of Canada. This thesis also analyses in some detail the present position of assisted suicide at common law and argues that when properly understood, though the legal position is confusing and contradictory, the common law is not in conflict with the potential decriminalisation of physician assisted suicide. Having clarified the present legal position and avenues for the development of the law, the main ethical arguments which inform and underlie the good morals which in turn underlies public policy, the so-called boni mores are considered. The point is made that the boni mores underlies our common law, and when this changes over time, our common law should follow suit. Having concluded that a key element of a decriminalised regime must include sufficient safeguards to protect the weak and vulnerable in our society, an analysis of the law in jurisdictions that have decriminalised physician assisted suicide and/or physician assisted euthanasia is undertaken which in turn culminates in a draft of proposed legislation for South Africa. The thesis points to studies which suggest that the experience in jurisdictions that have enacted a permissive physician assisted suicide regime has been largely positive. People in those jurisdictions who have explicitly chosen to exercise the right to die with dignity have avoided finding themselves in the inhumane condition of being compelled against their will to suffer interminably and unnecessarily. Whilst permissive legislation where available has succeeded in the aforesaid, such legislation does not appear to have resulted in a drop in the overall protection of human rights and the exposure of the vulnerable to harm, as was argued would be the case by those who have historically opposed physician assisted dying legislation. These facts which have become available from early-adopting jurisdictions for several decades now, and from ever more jurisdictions as physician assisted dying legislation is being ever widely passed, now show that the greatest fears of opposers have not come to pass. The study concludes that taking all of the above findings into consideration there appears to be a favourable legal framework and a preponderance of evidence to support a right to die with dignity in South Africa.
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    The challenge of hearsay
    (2003) Schwikkard, Pamela Jane
    In 1986 the South African Law Commission (Project 6 Review of the Law of Evidence), drawing heavily on the research of Professor Andrew Paizes, recommended significant amendments in respect of hearsay evidence that were subsequently given legislative force in the Law of Evidence Amendment Act 45 of 1988. The Act defines hearsay as ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’ (s 3(4)).
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    The re-engineering of South African small claims courts
    (2018) Paleker, Mohamed; Schwikkard, Pamela Jane
    The thesis argues for the retention and reform of the small claims courts. It considers the evolution of the small claims courts since their establishment in 1985, and the steps taken by the Government since 1994 to revitalise the courts to strengthen access to justice. The thesis also considers the management of the courts; the recruitment and qualifications of presiding officers; the rules of jurisdiction and locus standi; the processes and procedures of the courts; and the potential for introducing alternative dispute resolution (mediation). The thesis relies on a broad spectrum of local and foreign literature, the South African common law and statutes, as well as comparative research to argue for the reform of the courts and in particular, the Small Claims Courts Act 61 of 1984 and the Rules Regulating Proceedings in the Small Claims Courts. The small claims courts’ legislation is interrogated and concrete amendments are suggested. Arguments for reform are bolstered by official statistical data sourced from the Department of Justice. The study reveals that significant improvements must be made to the legislation governing the courts. The thesis establishes that the legal rules of jurisdiction and locus standi require a fundamental overhaul. While the thesis is complimentary of certain aspects of the processes and procedures of the courts – for example, the inquisitorial style of conducting a trial and the relaxation of the rules of evidence – it identifies a host of problems that impede access to justice, such as the lack of technology in the courts, cumbersome processes, and the presence of procedures that hinder justice because they are difficult to apply in practice. With regard to the management of the courts, the thesis recommends several steps to improve service delivery and proposes a new organisational framework for court management. The recommendations are easy to implement, with minimum cost to the State. The current regime of recruiting volunteer practitioners to preside in the courts is supported. However, experience shows that there is need to appoint a pool of magistrates to service the courts. In accordance with international trends, mediation in the courts is recommended. The thesis explains how and when mediation should be used to resolve disputes.