Browsing by Department "Institute of Criminology"

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    A go itewa ke monne wa gago ke Botshelo? : a preliminary investigation into battered women in Botswana.Volume1
    (1988) Mogwe, Alice
    This dissertation focusses upon battered women in Gaborone and its environs. It aims to perspective. examine physical battering from a socio-legal In an attempt to link the social and the legal, the women' s theoretical with the 'symbolic' them. and actual responses are analysed together and practical legal remedies available to by using new revolutionary feminism as a methodological and analytical tool, the researcher was able both to: relate to the women as a woman, and - ' create with the women a means of communication which was less hierarchic than it would otherwise have been. The legal and sociological responses are examined against the backdrop of a brief socio-political history of the country. The central themes focussed upon here are the law, role of chiefs, and the role and status of women in both the pre- and post-independence phases. This Chapter also serves to locate the major themes of the dissertation, marriage, family and the law, within a broader socio-political context. A brief excursus focusses on selected Zimbabwean legislation which directly relates to women. Even though the legislation is not specifically for combating battering, its potential use for such purpose becomes clear. Zimbabwe provides an example of a contemporary African country actively involved with putting to paper its government's ·commitment to the liberation of women and the establishment of equality of men and women in all spheres of Zimbabwean society. '1 The recommendations are divided into preferred and interim measures. The preferred measures operable within the researcher's preferred society are aimed at: the elimination of traditional structures which result in oppression and exploitation; the elimination of ideological relations which create and reinforce oppressive social relations at both personal and I global political economic levels; and being a society in which the laws both reflect and effect the principles of equality and legality. The interim measures operate within the present society and serve as precursors to the preferred remedies. The experiences of the women and the limited use of the law both 'formed the basis for these recommendations. It is this researcher's submission that battering cannot be addressed adequately in legal terms alone. Seen as a means of social control of women, battering has to be dealt with at both the social and legal levels for any effective measures to be taken.
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    A socio-cultural and comparative analysis of the doctrine of mistake in crimes requiring intention
    (1993) Wolhuter, Lorraine; Leeman, I
    Academics have often been criticised for their preoccupation with theoretical abstraction and logical deduction and their concomitant failure to address issues of practical importance or exigency. It must therefore be stated at the outset that the recommendations contained in this paper are not confined to a theoretical analysis of the doctrine of mistake. Per contrast, they are motivated by a genuine concern on the part of the writer to alleviate the present discord between South African criminal legal theory and socio-cultural reality. These recommendations are premised upon the advantages of the reception of the normative approach to criminal liability in South Africa, and they have been iterated elsewhere l by the writer in the context of, inter alia, the defence of necessity. The submissions that constitute the core of this paper must, however, be regarded as subject to the following qualification. A successful reception of the normative approach necessitates a change in the existing power relations that are operative in South African courts. To leave its application to the presiding judge and assessors would be to give them the freedom to inflect their decisions with their personal values and prejudices. It has been argued elsewhere2 by the writer that this problem may possibly be solved by the reintroduction of the jury system, suitably loaded to cater for the interests operative in the case. Sustained reflection and exposure to the exigencies of practice has, however, yielded the conclusion that the difficulties that accompanied the jury system and the suspicion with which it was viewed, outweigh any advantages that its re-introduction may have. A possible alternative, and one which, it is submitted, would work well in practice, is the increased use of expert witnesses at the stage prior to conviction, provided that they are suitably qualified (either formally or informally) to adduce evidence on the socio-cultural matrix of relations in which the accused in question lives and moves. In the context of mistake of law, for example, evidence concerning, inter alia, the level of legal knowledge and general education in a particular community could be adduced by persons who are either long-standing members or active participants in the socio-cultural life. of such community. The theoretical views and preferences expressed in this paper should thus be read with the above-mentioned practico-social problems in mind.
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    Analysis of legal issues arising from the principle of concurrent domestic and international jurisdiction : application to the Rwandan context
    (2014) Theophile, Sugira; Woolaver, Hannah
    In international criminal law, the application of the principle of concurrent jurisdiction necessitates the existence of two types of Courts: a national court and an international one. As a result of the uniqueness of the Rwandan context, there were more courts hearing matters that arose from the genocide.6 In Rwanda, such cases are tried by ‘conventional courts’ and the ‘Gacaca’ courts. Gacaca is defined as a system of transitional participative community justice, whereby the population is given the chance to speak about the committed atrocities, to prosecute, defend, judge and punish the criminals. The conventional courts are divided into ordinary courts and military courts. All these courts have the jurisdiction to prosecute genocide cases. Genocide cases were therefore heard in three different courts domestically but in concurrence with International Criminal Tribunal for Rwanda (ICTR). As a result of the particular context of the Rwandan Genocide of 1994, particular issues arise and will be explored in this study.
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    An analysis of the legal regime governing transfer of cases from the International Criminal Tribunal for Rwanda (ICTR) to the Rwandan domestic justice system
    (2010) Ingabire, Mackline; Nakhjavani, Salim
    The International Criminal Tribunal for Rwanda (ICTR), established by the United Nations Security Council was originally set to wind up its affairs in 2010. However, by Resolution 1901 of the Security Council, ICTR's mandate has been extended to 2012.This will necessitate the transfer of residual cases to national courts for trial after it has closed. Rwanda considers itself a suitable candidate for referral, and hence has supported the ICTR Prosecutor's requests (five requests) for referral to its national courts.
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    Assumptions and Reality: The securitisation of human trafficking in Southern Africa
    (2010) Hübschle, Annette; Van der Spuy, Elrena
    Our understanding of the concept of security has changed since the end of the Cold War. A cursive look at our daily news headlines confirms that a plethora of phenomena are phrased in security terms. The 'drug on wars' and the 'global war on terrorism' are the most obvious examples. Trafficking in persons has also been elevated to a security issue. The trend of 'securitising' non-traditional security threats has not stirred much controversy as yet. This dissertation will question why and how the issue of human trafficking has been securitised. In using the Copenhagen School's securitisation theory as an analytical framework, the dissertation will examine the international and regional (southern Africa) dimensions of the securitisation of human trafficking. The emergence of human trafficking as a social problem in public discourse will be discussed. Of principal concern are the underlying interests that propel the moral panic. Another chapter will look at global strategies aimed at combating and preventing trafficking. Before exploring the parallels between the 'Global War on Terrorism' and the dominant anti-trafficking paradigm, existing research evidence on the prevalence, scale and size of human trafficking will be scrutinised.
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    Battered women: self-defence and provocation
    (1993) Oswell, Bennita-Simone; Leeman
    The act of 'being battered' is within the realm of experience of many women and may involve not only actual physical assault but also psychologically debilitating practices, all of which occur in a society which seems to be unable to realise the extent of the problem. 'Wife beating' has always been deemed to be a personal, family problem, to be solved by the wife to the best of her abilities - it is seen as an internal family issue, not the business of neighbours or outsiders and certainly not within the purview of the police or the law. The view therefore held by friends, neighbours and the police has generally been that these women 'encourage, elicit and enjoy this type of abuse'.
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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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    "Children should be seen and not heard": a re-evaluation of certain ancient rules of evidence and procedure that discriminate against the abused child
    (1999) Berg, Ronel; Van Zyl Smit, D
    "At the southern tip of the continent of Africa, a rich reward is in the making. This reward will not be measured in money. It will and must be measured by the happiness and welfare of the children, at once the most vulnerable citizens in any society and the greatest of our treasures. The children must, at last, play in the open veld, no longer tortured by the pangs of hunger, or ravaged by disease, or threatened with the scourge of ignorance, molestation and abuse, and no longer required to engage in deeds whose gravity exceeds the demands of their tender years. In front of this distinguished audience, we commit the new South Africa to the relentless pursuit of the purposes defined in the World Declaration on the Survival, Protection and Development of the Child."
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    Compensation for victims of sexual violence in South Africa : a human rights approach to remedial criminal compensation provisions
    (2013) Greenbaum, B; Barratt, Amanda
    The author questioned why state attorneys, prosecutors and magistrates/judges in South Africa rarely review the compensation concerns of sexual violence complainants and witnesses in criminal sentencing matters, and in quasi-criminal civil forfeiture proceedings, as is frequently done for other classes of complainants (namely, commercial crime complainants and victims of violent crime in general). A conclusion was reached, after conducting extensive research for this thesis, that offender and state compensation processes were sparingly utilized in cases of sexual violence, in part, due to institutional biases that resulted in discrimination. The above finding was substantiated by way of twenty-seven (27) interviews with criminal justice role-players, eight (8) court file case studies and forty-seven (47) victim surveys. The above subject matter is important because failures by criminal justice state role-players to review the compensation concerns of sexual violence victims, on account of biases, causes real harm to these vulnerable complainants. For example, research in this thesis confirmed that state and offender compensation can assist sexual violence complainants with their cultural obligations, court appearances and post-assault health expenses and to pre-empt compensation reviews on account of biases disrupts victims' post assault recoveries. Further, compensation can assist sexual violence complainants with security related expenses, including relocation costs, so as to avoid repeated victimization.
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    Contested governance: police and gang interactions
    (2017) Kinnes, Irvin; Shearing, Clifford D; Van der Spuy, Elrena
    Gangs in Cape Town have long been associated with high levels of violence and police efforts on the Cape Flats, while state agencies have not yet been able to bring any significant relief to the affected communities or growing gang structures. It seems the conventional approaches need reconceptualization. This thesis explores a nodal governance approach to the forms and consequences associated with the policing of gangs by police. Developments in governance theory has brought new insights for our understanding of how state and non-state actors relate in and across different networks, and especially within the security governance networks. However, such research has failed to consider how gangs and police interact and regulate each other through their own governance and conflict with one another. In attempts by the police to govern gangs (and by extension the community), a state of contested governance arises between gangs and police nodes of power. This thesis argues that contrary to previous understandings, the organised gangs of Cape Town regulate and impact the way the police police gangs, which in turn affects the way gangs police themselves, and goes on to explore these interactions.
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    Crime and imprisonment in South Africa with particular reference to prison labour
    (1975) Corry, Terence Macalaster
    In this thesis, which records research into prisoner employment practices in various countries and makes certain recommendations for the development of correctional treatment in South Africa, the author has started from the premise that, justifiably or not, imprisonment as a major penal sanction will be with us for the foreseeable future. Furthermore, it is probable that the average length of time being served by prisoners will increase as greater use is made of non-custodial methods of treatment. The treatment of juvenile offenders has been deliberately excluded throughout. Assuming that the aim of imprisonment is to reform/rehabilitate offenders, in addition to keeping them in safe custody, then everything practicable should be done to enhance the possibility of achieving this goal.
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    Crime, culture and collecting: the illicit cycad market in South Africa
    (2017) Torgersen, Jonas Sørflaten; Shaw, Mark
    It is widely accepted that illicit markets are driven by specific contextual factors that determine their nature and scope. Two points in particular have not been explored in the literature on wildlife crime. First, while illicit markets around commodities such as drugs and weapons are fuelled by consumers arguably in need of, or addicted to, the product, the desires of buyers that shape wildlife markets are often shaped by cultural norms which may seem irrational to outsiders. Second, given that wildlife markets are seldom as stringently regulated as those in respect of drugs, weapons or other commodities, the nature of the criminal enterprises that source, move and sell the products are possibly very different. The study examines these two factors – the culture of markets and the degree of criminal enterprise or organisation within them – through a case study of a largely unexamined environmental crime market in South Africa, that of rare cycad plants. Cycads are widely exploited, moved and sold in the country by a network of increasingly criminalised operations. State action against these markets is not a priority and has had only few successes in limiting the trade of an increasingly scarce plant. A detailed examination of the market and its consumers suggests that it is strongly shaped by a particular South African culture which draws on (often mythical) connections to the land, including its fauna and flora. Ironically, those active in the market argue that their objective for doing so is conservation, even if illicit collections are the prime threat to the species. Although the academic and conservation community have attempted to develop and implement conservation tools and strategies, limited law enforcement and regulatory mechanisms have produced a flexible illicit market where a set of intermediaries play the key role. While the market shows signs of internal competition, it operates relatively openly, and does not display the levels of violence of other criminal markets in similar stages of development.
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    Criminal negligence and mens rea : is the reasonable man test an unreasonable one?
    (1993) Louw, Ronald Hayward
    In this essay I shall explore the various pertinent components of the test for criminal negligence paying particular attention to the issues raised above, namely, the pure objective test, the notion of the reasonable man, the relative objective test, circumstances external to the actor, and the subjective test. In doing so I shall critically consult and review the writings of various South African writers on the topic as well as the courts' handling of the test and its attendant practical and theoretical difficulties. For the sake of completeness and clarity certain other closely related issues will be explored, namely, whether the test for negligent delictual liability is applicable in criminal law, and the distinction between and nature of unlawfulness and mens rea in negligence crimes. These latter issues, which will not be developed as fully, serve as a necessary component of any discussion on the central question in this essay, namely, the justness and fairness of determining criminal negligence by means of the objective reasonable man test.
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    Criminal strategies of competing protagonists in the 'development' of Crossroads 1990-9: The Transition from Apartheid "oilspot" to democratic civil society
    (2001) Greenwell, Anne W; Schärf, Wilfried
    The history of Old Crossroads started in 1975 when indigent families from the Eastern Cape, began arriving in search of work in the Cape Town area of the Western Cape. They erected their shack/homes in the bush areas bordering the Nyanga township that is located twenty-two kilometres out of Cape Town near the N2highway and across it the airport. As squatters they struggled for survival and the right to remain, under the leadership of a 'traditional' rural type Headman called Johnson Ngxobongwana, who negotiated on their behalf with the regional and local government authorities. A precarious and volatile balance of power between these and the informal-settlement leadership often resulting in conflict ensued and, it is claimed, had prevented socio-economic development of the area. During a spell in prison on corruption charges Ngxobongwana had been turned from his "struggle" leadership adversary role to be a client/puppet of the apartheid government authorities by cooperating with them in opposing the lNC and its youth structures known as the"comrades". This had resulted in a major outbreak of violence led by his "witdoeke"vigilante group of older local 'traditional' leaders and their followers backed by the local government authorities and supported by government security forces attacking the residents of KTC, burning their homes and laying the area to waste on the pretext of clearing out the "comrades". Since then there has been ongoing low-intensity conflict, criminal activity and intimidation often erupting into sporadic violence in the Old Crossroads urban and informal-settlements. The period of history from 1976-1986 is comprehensively covered by Josette Cole in her book on "Crossroads" (1987). This dissertation will attempt to take up the story from there but the main focus of the research will be on the years between 1990-1999.During this period the writer/researcher has been active, initially as a 'repression' monitor with the Black Sash Monitoring Group until it closed down in 1994, and from 1995-1999, as a 'peace' monitor with UMAC (Urban Monitoring Awareness Committee). Through her involvement with both these Human Rights NGOs (nongovernment organizations) she has been able, most particularly in Old Crossroads, to meet and interact with representatives of the various constituencies there including the security forces and local government authorities. She has kept a journal throughout which has become a Research Diary reflecting the important events, the interpersonal, as well as the more formal group meetings that occurred. It was only in1996 that the possibility of a dissertation took root and she began to conduct more formal semi-structured open-ended interviews with the key role-players which were electronically recorded.
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    Critical criminology in South Africa : developing paradigms and theoretical models
    (1993) Rossouw, Gideon
    The unmasking of apartheid and the unmasking of the state run together in an analysis of the legacy of social engineering. The integration of macro and micro levels of analysis offer a complex challenge to social theorists, and this in conjunction with the demands of analysing a racially divided society undergoing extreme forms of crisis and change, require a sophisticated· level of theorizing which is informed by the practical experiences which constitute the social relations of the society. The perspectives that can be offered in the fields of crime, crime control and the social consequences of economic and social interaction cannot be complete without considering the political framework within which the competing demands for power, influence and wealth are taking place. These structures have undergone radical ideological transformations in the recent past, which have been linked to the radical consequences of the end of the ·cold War' and the apparent era of demilitarising international relations between powerful states. The issues which will cloud the judgements made in the field of Criminology are linked to these broader matters of international relations, and gee-political issues, because the political struggle in South Africa has been utilized in terms of this debate, and the achievement of the democratic demands has become foreseeable and realistic because of changes taking place at international level.
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    A critical examination of the relationship between the International Criminal Court and the United Nations Security Council, in the light of referrals and deferrals
    (2014) Lugulu, Jullie Ingrid; Woolaver, Hannah
    The Rome Statute of the International Criminal Court (Rome Statute) provides for a close relationship between the International Criminal Court (Court) and the United Nations Security Council (Security Council). This relationship is demonstrated through Security Council exercise of referrals and deferrals. This dissertation discusses first, the Security Council referrals of the situations in Darfur, Sudan and Libya. Second, the Security Council passing of resolutions 1422(2002) and 1487(2003), which deferred the Court from commencing any investigations or prosecuting of any crimes that could have arisen as a result of the United Nations peacekeeping operations. This dissertation argues that the Security Council has exercised referrals and deferrals contrary to the Rome Statute, the Charter of the United Nations (the Charter), and the Negotiated Relationship Agreement between the Court and the Security Council (Relationship Agreement) as envisaged by the drafters of the Rome Statute. It concludes by stating that, the relationship between the Court and the Security Council is at a crossroad because the latter has failed to exercise referrals and deferrals in the manner provided for in the Rome Statute and as envisioned during the drafting of the Rome Statute, thereby equating the Court to the proverbial bark of a toothless dog.