OpenUCT :: Browsing by Author "Smythe, Dee"

Browsing by Author "Smythe, Dee"

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Open Access
A critical re-appraisal of vernacularisation in the emergence and conceptualisation of community bylaws on child marriage and other harmful practices in rural Malawi
(University of Cape Town, 2020) Kachika, Tinyade; Chirwa Danwood; Smythe, Dee
The thesis addresses the question: how have international human rights norms for protecting women and girls from harmful practices influenced and shaped the emergence and conceptualisation of community bylaws for addressing child marriage and other harmful practices affecting women in rural Malawi? 'Community bylaws' is a label for Chief-led community 'rules' aimed at combating harmful practices, which mostly affect women and girls. This thesis contributes to the theoretical discourse on norm diffusion by critically assessing and appraising the way in which scholars have conceptualised how international human rights norms are internalised, and, particularly, how vernacularisation operates, through a case study of the community bylaws. Drawing from qualitative empirical data following a study conducted in four districts covering the three regions of Malawi, the study focused on the territories of four Senior Chiefs. Data was gathered through semi-structured interviews with Senior Chiefs and government officials, NGOs, and donors; and through focus group discussions with Group Village Heads, Village Heads, groups that formulated or monitor the implementation of community bylaws, and women living under these bylaws. The thesis shows that while scholars have sought to explain how international human rights norms are appropriated in local communities using the concept of vernacularisation, existing conceptualisations do not adequately represent what is happening with the community bylaws phenomenon. Vernacularisation is a unicameral concept that sees human rights ideas and programmes as being purposefully introduced in local communities by epistemic outsiders. Based on empirical data, this thesis argues that the concept of 'horizontal vernacularisation' better describes the processes occurring in respect of community bylaws in Malawi. This concept has regard to vernacularisation as a bicameral act, whereby the local can also trigger vernacularisation, whether knowingly or not. Thus, horizontal vernacularisation acknowledges that human rights appropriation and translation through community bylaws unfolds within a predominantly local-local dialogue, and is not usually structured, since the bylaws sprout in a continuum of intuitive, interlocking, convoluted, and iterative processes. As such, this thesis contributes to a deeper understanding of community bylaws in rural and cultural settings, and their role in reconceptualising the internalisation of international human rights norms for protecting women and girls from harmful practices.
Open Access
Barriers to access to mental health care services in the Cape Metropole, faced by refugee and asylum seeker women who have been exposed to trauma
(2013) Warton, Giselle; Smythe, Dee
Through use of a phenomenological design, this qualitative study investigated barriers to accessing mental health care by female refugees living in the Cape Metropole who have mental health problems as a result of exposure to trauma. A high number of female refugees in the Cape Metropole have been exposed to trauma. This study aims to contribute to the limited literature on this topic. The objectives of the study were to identify whether female refugees faced barriers to accessing mental health services in the Cape and if they did, the nature of these barriers. The findings identified that at the service-delivery level, language, under-resourced mental health services, documentation barriers and lack of awareness of refugees' rights were the biggest barriers. The main barriers in the refugee communities were cultural and religious, fear and lack of awareness and work and childcare responsibilities. The study highlights that not only is the South African government obliged under international, regional and national laws to fulfil female refugees' right to access mental health services, but it is in the state's best interests to do so.
Open Access
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.
Open Access
Constitutional rationalisation of legislation dealing with traditional justice system
(2014) Ngema, Phumelele O P; Smythe, Dee
My thesis addresses the question of whether an imposed traditional justice system operating through traditional courts is still relevant in South Africa. I interrogate whether traditional courts are necessary in a constitutional democracy outside of the existing western type courts system. The Constitution, in terms of chapter 12, recognises traditional leaders and enjoins government to enact national legislation that provides for the role of traditional leadership at a local level. As a unitary democratic state with diverse cultures, the Constitution also acknowledges and grounds diversity which could be interpreted as permitting legal pluralism. I argue that the Constitution envisages recognition and application of the indigenous system within the existing courts of law and subject to the Constitution. Traditional leaders must be recognised in line with the injunction that customary law must be developed and applied by courts. Any other different construction on how traditional courts may be rationalised promotes the interest of traditional leaders and creates an unstable pluralist legal system enabling inequality and discrimination contrary to constitutional imperatives.
Open Access
The corroboration requirement in sexual offences : a discriminatory and unconstitutional evidential rule in the Malawian law
(2012) Ndovi, Vikochi Jane; Smythe, Dee
The problem with the corroboration requirement in sexual offences is that it is based on an improper foundation. The proffered rationale, that most complainants lie about sexual offence allegations, cannot be verified from empirical data. Regardless of this fact, due to the rule’s existence, the standard of proof in sexual offence cases is unnecessarily raised above that which normally obtains in other criminal cases, causing convictions in sexual offences very hard to come by. The rule is found to be only premised on discrimination against women. Such being the case, the rule runs counter to the current Constitutional order which is founded on principles of equality before the law, non-discrimination and the dignity of all persons. It is also against the Constitutional commitment of offering women full and effective protection. This paper advocates that such an evidential rule is undesirable for it serves no useful purpose in the adjudication of sexual matters and that the rule is unfairly discriminatory against women and unconstitutional in the present Malawi constitutional regime. It further advocates that the rule should be abolished both by judicial pronouncement and legislatively. Since the corroboration requirement is a common law rule, lessons will be drawn from comparative common law jurisdictions which used to have the rule but have now abolished it, such as South Africa, Namibia, the State of California, Canada and England.
Open Access
Decentralising the South African Police Service: Does South Africa's current public safety crisis and the de facto decentralising of policing necessitate a critical evaluation of its present policing model?
(2020) Roelf, Nicholas Louis; Smythe, Dee
Violent crime in South Africa has reached epidemic levels, and something needs to be done about it as a matter of urgency. While the huge socio-economic inequalities in South Africa remain the main cause of crime in South Africa, the focus of this dissertation is on the inefficient, ineffective and unaccountable South African Police Service (SAPS), and how its failings have contributed to the public safety crisis South Africa is faced with presently. In this dissertation I suggest that, given South Africa's current public safety crisis, institutional reform of SAPS is needed in order to adequately address this social ill and argue that it is worth revisiting the decentralised policing model proposed under the Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), as a partial solution. The public safety crisis effects every person in South Africa, whether directly or indirectly, however, it is the most vulnerable communities, on the socio-economic margins of the South African society, who suffer the most. The Cape Flats in Cape Town is used as a representative case study to show the failings of South Africa's current centralised policing model, highlighting how SAPS have proven to be ineffective in dealing with violent crime there. As a result of the failings of SAPS people are organising locally to ensure their own safety, including the creation of vigilante organisations. In Cape Town a de facto decentralised police service has been created, which in itself presents a serious problem however also reflects the demand for more localised and nuanced policing in South Africa.
Open Access
Domestic violence and employment: an examination into retail employer's awareness of and responses to the Impacts of domestic violence on the workplace
(2007) Kaunda, Nikiwe J; Godfrey, Shane; Smythe, Dee
There is increased recognition that employees need to maintain a balanced work-home life in order to be successful and productive. One of the major threats to attaining this equilibrium is 'personal' issues such as HIV/AIDS, trauma and domestic violence. Such issues not only have economic impacts on a business' bottom line, but there are _·also social impacts that affect employment relations. The problem is further compounded by the difficulties that employers face in determining first the manner in which social problems become 'workplace' problems, and secondly, in deciding how they can meaningfully intervene. Because of the difficulties employers face in transcending the perceived boundaries between 'public' and 'private' concerns, some of these social problems are not effectively addressed, even though they may have negative impacts on a business. This research provides an expose of the manner in which domestic violence related issues are perceived and dealt with in the South African workplace. The research specifically focuses on establishing whether employers in the clothing, footwear and textile (CFf) retail sector are aware of the impacts of domestic violence on workplace relations. Findings suggest that the first step towards resolving such problems lies first in the ability of employers to identify the manner in which a social problem impacts on a business, and, secondly determining the best way in which employers can utilise existing resources and liaise with social service providers to address these concerns. Domestic violence is a prevalent social problem that requires the intervention of all segments of society. Employers need to start acting now, before the debilitating effects begin to disrupt workplace productivity on a larger scale.
Open Access
The elusive justice for women: a critical analysis of rape law and practice in Kenya
(2015) Lekakeny, Ruth Nekura; Smythe, Dee
This thesis seeks to uncover the challenges encountered by women and girl victims of rape in seeking recourse through the criminal justice system in Kenya. To do this I focus on their experiences in three major points of service provision, i.e. the police, the health facilities and the courts. I then explore, as a secondary research question, whether an integrated service provision approach provides solutions to these challenges. Article 48 of the Constitution of Kenya provides that 'The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice'27 This obligation places a tall order on the state and all its agents to ensure that anyone in pursuit of justice should access it with the minimum obstacles.
Open Access
Enlisting science in the 'war on crime': Key controversies generated by the South African Criminal Law (Forensic Procedures) Amendment Bill
(2010) Lee, Alix; Van der Spuy, Elrena; Smythe, Dee
Open Access
Missed opportunities: Confiscation of weapons in domestic violence cases
(Academy of Science of South Africa, 2004) Smythe, Dee
Part of a series in the SA Crime Quarterly on the implementation of the Domestic Violence Act, this article focuses on the use of weapons in incidents of domestic violence as reflected in applications for protection orders at three Western Cape jurisdictions. Weapons are often used in domestic violence. If the police and magistrates use the powers available to them to seize weapons, it will go a long way to protecting women and the broader public.
Open Access
Moving beyond 30 years of Anglo-American rape law reforms: Legal representation for victims of sexual offences
(2005) Smythe, Dee
The South African Law Commission has proposed a number of substantive and procedural reforms to South Africa's laws governing sexual offences. This article argues that, while important in principle, these reforms are unlikely to shift police and prosecution practices or to meaningfully increase the numbers of offences prosecuted or perpetrators convicted. Support for this argument is drawn from the experiences of other Anglo-American jurisdictions in implementing similar reforms. The current law reform process does, however, present an important opportunity to consider possible reforms that have the potential to shift institutional norms informing current criminal justice practice, and to provide meaningful protection for victims of sexual offences forced to navigate that system. One such reform, which has met with some success in other jurisdictions, is the introduction of a legal representative to engage with the criminal justice process on behalf of the victim. This article looks at the legal and constitutional rationale for such an innovation and at models used in comparative jurisdictions, concluding that such a reform would go a long way towards ensuring that the existing rights of rape victims are meaningfully enforced.
Open Access
The narrow road towards a possible decriminalisation of consensual sodomy in Malawi
(2012) Kumitengo, Josephine Lucia; Smythe, Dee
The study is comprised of five chapters, with this as the first and will proceed on the hypothesis that criminalisation of consensual sodomy is unconstitutional and should be invalidated even in the midst of challenges to such a declaration. Chapter two will give comprehensive outline of the offence of carnal knowledge against the order of nature under section 153 of the Code. The ambiguities created by section 153 are analysed in chapter three where a critical discussion on the case of Republic v Steven Monjeza Soko and Tionge Chimbalanga Kachepa will also be made. A constitutional analysis of section 153 (a) and (c) will be done and it will be argued that it impairs the rights to equality, privacy and dignity in a manner that is indefensible. Chapter four will highlight among others, how the requirement of locus standi in constitutional cases is a limitation to the constitutionality challenge of section 153 (a) and (c). It will also show how the current Malawi setup of the appointing judges of the High court by the Chief Justice to sit as a constitutional court is another hindrance to the decriminalisation of the provision. In addition, the possibilities of decriminalising the offence of sodomy will be explored. Chapter five is the concluding remarks and recommendations.
Open Access
People's Parliament? An assessment of public participation in South Africa's legislatures
(2015) Waterhouse, Samantha Jane; Smythe, Dee
This paper assesses the political impact of the constitutional framework and policy for public participation in South Africa. I consider the question of how legislatures are fulfilling their obligations to facilitate public participation, if they meet international human rights law (IHRL) norms and the extent to which the public involvement facilitated by legislatures measures up to standards identified by theories of political participation. Central to this is a discussion of whether government-led citizen participation processes influence, or have the potential to influence, state decision-making. I examine the political tensions that arise between public participation and party politics within the context of South Africa's political system and discuss the role of civil society-led participation, and the interactions and conflicts between this and the government facilitated processes.
Open Access
Post-Apartheid Legislative Recognition of Traditional Leaders in South Africa: Weak Legal Pluralism in the Guise of Deep Legal Pluralism An analysis and critique of the legislative framework for the recognition of traditional leadership in South Africa under the 1996 Constitution
(2015) Mutloane, Mphati Ntebaleng; Smythe, Dee
This study explores the limitations of recognising traditional leadership as institution through legislation. The legislative recognition of traditional leadership has serious implications for the processes of change within customary law from 'official' customary law to 'living' customary law. The advent of the 1996 Constitution and its emphasis on freedom, dignity, equality and accountability has opened up avenues for democratic political participation, which is changing the nature of customary law through a bottom-up process involving community members in the evolution of customary law. This process of evolution draws on various sources of law, including aspects of official customary law, community norms and procedures as well as the Constitution, particularly rights discourse. Deep legal pluralism has taken root through living customary law and is changing the way in which community members relate to traditional leaders by empowering rural citizens to demand accountability from traditional leaders. Legislative recognition of traditional leadership has been characterised as necessary for the restoration of the dignity of African justice systems. Though constitutionally sanctioned through the rule of law, the legislative framework recognising and regulating traditional leaders has had a negative impact on the processes of change and democratisation described above at grassroots level. Gaining an understanding of these consequences and how they have come about is at the heart of this study, especially given that they are unintended consequences of a government policy meant to improve the lives of rural citizens. Legal pluralism as a theory of law provides a critical lens through which the shortcomings of legislation recognising traditional leadership can be perceived, and probing questions can be asked about the effect of state law on non-state legal orders. However, in South Africa the situation is quite complicated given that the distinction between state law and non-state law with regard to African customary law is not always easy to make. The two systems have existed not only in juxtaposition for many years, but have bled into each other in layered ways. These layers have been moulded very deeply through the influence of various politicolegal orders in existence at particular times and their impact on social relations in South African society. As a theory of law, legal pluralism is used in this study to try and peel back a few of these layers, enabling observation and analysis of how the distribution of political power from the different politico-legal frameworks of governance in South Africa namely, colonialism, apartheid, and constitutional democracy, have shaped traditional leadership; and the impact of these processes on the power relationships between traditional leaders and rural citizens. Law, mostly in the form of legislation, has been an important factor in the establishment, destruction, and re-establishment of these power relationships. This forms the basis of the study, at the end of which it is determined that although legislation is necessary for the recognition and regulation of traditional leadership, as a requirement of the rule of law, the current and proposed legislative framework for traditional leadership is an inappropriate framework. It centralises legislative, judicial and executive power in an unelected arm of government, namely traditional leaders, which is unconstitutional on the basis of the separation of powers principle which is a founding value of South Africa's constitutional democratic dispensation.
Open Access
Prostitution as the exploitation of women and a violation of women’s human rights
(2014) Oppenheimer, Emily; Smythe, Dee
This thesis draws attention to South Africa’s shift in perspective of prostitution as a criminal offense to a human rights concern. This thesis addresses the proposed adult prostitution legal reforms in South Africa. These models are analyzed and evaluated in order to discover which model best upholds international standards of human rights. International best practices and prostituion legislation in other parts of the world are used to depict current successes and failures. However, concern has been raised if certain legal reforms could succeed in a sociocultural context such as South Africa. This thesis seeks to investigate prostitution within the sociocultural context of male power and female oppression in South Africa. Prostitution is revealed as the exploitation of women and a violation of human rights. It is concluded that South Africa’s context of pervasive violence against women is not unique, but a reflection of a global view of women. The Nordic model is the human rights model that is recommended for South Africa. This model is not only able to improve the sociocultural status of women, but also penalize the demand for female sexual labor, which is considered the primary force behind the sex industry.
Open Access
Providing an effective legal framework for the protection of people living with HIV and AIDS in Nigeria
(2014) Kolawole, Omowamiwa; Smythe, Dee
This thesis seeks to address the question of how discriminatory practices operate against people living with HIV/AIDS (PLWHA), the effects of this discrimination on their lives and how they can be protected against such discrimination, by the law in Nigeria. In addressing this question, the legal ramifications of HIV/AIDS will be examined, from the detection and testing phase to the treatment of people known or perceived to be living with the virus and then to their legal rights, which protects them from discrimination and unfair treatment. This issue is important, as it covers a subject matter that has received little attention from the relevant authorities in Nigeria. This work seeks to contextualize the problem of stigmatization and discrimination against PLWHA by raising issues that centre on the treatment that they receive in society and how this treatment affects them, and the society at large. In addition, this question helps reveal the practices that have helped perpetuate a culture of fear, which has inadvertently contributed to the spread of HIV in Nigeria, while also depleting the number of people living with the virus. In sum, the dissertation seeks to help identify the underlying issues that drive discrimination against PLWHA and propose an effective legal framework to stem the tide, with its resultant positive gains.
Open Access
Rape Unresolved: Policing Sexual Offences in South Africa
(UCT Press, 2015-01-01) Smythe, Dee; Smythe, Dee
More than 1 000 women are raped in South Africa every day. Around 150 of those women will report the crime to the police. Fewer than 30 of the cases will be prosecutedand no more than 10 will result in a conviction. This translates into an overall convictionrate of 4 – 8 per cent of reported cases. What happens to all the other cases? Rape Unresolved is concerned with the question of police discretion and how its exercise shapes the criminal justice response to rape in South Africa. Through a detailed, qualitative review of rape dockets and victim statements, as well as interviews with detectives, prosecutors, magistrates and rape counsellors, the author provides key insights into police responses to rape. A complex picture emerges, of myths and stereotypes, of skills deficits, of disengagement by police as well as victims. Responsibility for the investigation of the cases – and their ultimate failure – is shifted onto the complainants, who must constantly prove their commitment to the criminal justice process in order to be taken seriously. The vast majority of rape victims who approach the criminal justice system in South Africa do not receive justice or protection. This book uncovers the fault line between the state’s rhetorical commitment to addressing sexual violence through legal guarantees and the actual application of these laws.
Open Access
Recent discourses on vigilantism within South Africa
(2012) O'Reilly, Ciaran; Smythe, Dee
Reports of vigilantism are common in South African media today, where it is portrayed as a growing trend of reactionary violence against the perception of a high crime rate in the country and a criminal justice system which is failing the public. At the same time, the South African Police Service has positioned itself as taking measures to combat the high level of crime which has been blamed for this vigilantism, and publicly denouncing those who take the law into their own hands, both through comments in the media and their own press statements. This dissertation will provide an overview of the three major discourses on vigilantism in South Africa; within academic literature, the media and public arena, and from the South African state itself. In doing so, I hope to contribute to the understanding of how vigilantism is depicted, described and discussed in South Africa today.
Open Access
South African criminology's aetiological crisis: reflections on a century of murder
(University of Cape Town, 2020) Kriegler, Anine; Van der Spuy, Elrena; Smythe, Dee
South African criminology's structural aetiology is in crisis. This dissertation offers a novel account of the nature, origin, severity, implications, and possibilities of that crisis. It suggests that, rather than a normative problem, it should be understood as an empirical one, related to the challenge of crime prevalence measurement. The question of crime prevalence patterns and trends has mistakenly been treated as trivial. This dissertation conducts meta-theoretical and historical analyses to reveal a fundamental criminological quandary: making defensible and testable claims about aggregate crime prevalence patterns and trends is at once both indispensable and impossible. This dilemma is in some respects inherent to the task of primary criminology, but its origin and manifestation are also uniquely crippling and revealing in the South African context. The aetiological crisis is more severe, more fundamental, and more complex than previously thought. In demonstration of this, this dissertation seeks to establish, as defensibly as possible, just one observation about long-term South African crime prevalence trends that would seem to require explanatory effort. It collects official South African police murder statistics over the longest-possible time frame and at the lowest-possible level of aggregation and combines them with census data using Geographic Information System technology. The result is by far the most extensive and defensible possible description of South African long-term crime prevalence patterns and trends. It shows a large, unprecedented, widespread murder rate decrease from 1994 to 2011. This poses problems for existing theory and reveals the discipline's failure to even identify that which is relatively unequivocal and requires explanation. This dissertation concludes that there is an unidentified void at what should be the empirical heart of South African criminology. There is much to gain in engaging head-on the question of how to go about systematic empirical observation in the context of profound ambiguity about the meaning and measure of crime.
Open Access
The application of alternative dispute resolution mechanisms in the resolution of electoral disputes: Nigeria in perspective
(2018) Ikpokonte, Felicia Enoch; Smythe, Dee
This dissertation explores the functionality of Alternative Dispute Resolution (ADR) as an effective mechanism in Electoral Dispute Resolution (EDR) in Nigeria. It considers the evolution and application of ADR in Nigeria as well as the merits and successes of ADR in EDR to assess the essentiality and suitability of ADR in EDR in Nigeria. It also examines the Nigerian electoral dispute setting and international trends in the application of ADR in EDR to determine the practicability of ADR in EDR in Nigeria. The dissertation finds that although the utilisation of ADR is desirable and suitable in EDR in Nigeria, the utilisation of ADR in EDR is not formally endorsed in Nigeria. Furthermore, the current Nigerian sociopolitical atmosphere is not conducive for the efficient application of ADR in EDR. This notwithstanding, research indicates that the adoption of a wide-ranging approach, which entails structural, legislative, institutional, political, attitudinal and socio-economic reforms, would ensure the achievement of the efficient utilisation of ADR in EDR in Nigeria. This dissertation therefore concludes that, despite the present unfavourable condition, ADR can be an efficient mechanism in EDR in Nigeria, given an enabling environment.

Browsing by Author "Smythe, Dee"

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