South African Criminal Law Journal

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
1011-8527

Description:

This bilingual publication (English and Afrikaans) provides an arena for discussion of issues affecting the criminal justice system. It is an accredited, specialist legal journal publishing articles, comments, surveys of recent cases and book reviews in the field of criminal justice, with a particular emphasis on Southern Africa. The focus of the journal is criminal law, criminal procedure, evidence, international criminal law and criminology.

Issue Number

Latest documents

  • Recent Case: Sentencing

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  • Recent Case: Criminal Procedure

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  • Recent Case: Law of Evidence

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  • Recent Case: International Criminal Law

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  • Last Resort or Lasting Harm? Examining Pre-Trial Detention of Children in Conflict with the Law in Kenya: Advocating for Accountability in Law Enforcement

    This paper is driven by the desire of the global community to restrain children’s detention to when necessary. The paper addresses the ongoing problem of excessive and prolonged pre-trial detention of children in conflict with the law in Kenya, despite national and international legal standards advocating for detention only as a measure of last resort and for the shortest appropriate period of time. Detained for minor offences, like stealing chicken, some children wait up to six months in pre-trial detention often being exposed to violence, stigma and long-term developmental harm. Although the 2010 Kenyan Constitution marked a significant step forward in protecting children’s rights, implementation gaps persist. To interrogate this problem, the paper uses a qualitative legal analysis, drawing on legal instruments, policy documents and case studies to explore how existing laws are applied in practice. It evaluates the extent to which Kenya’s child justice framework aligns with international standards and identifies systemic obstacles within the justice system that undermine child rights protections. The paper finds that while Kenya has a strong legislative foundation for child justice, implementation remains weak. Key recommendations include enforcement of the law, a coordinated child justice system and establishing accountability mechanisms for justice system actors who fail to uphold child protection standards. The study underscores the urgent need to reform the justice system by restoring a coordinated, child-centred approach.

  • Previous Consistent Statements in Sexual Offences in South Africa: Interpreting Sections 58-60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Through Their Drafting History and Relevant Case Law

    Section 58 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act requires courts to admit previous consistent statements relating to sexual offences. However, it does not explain the purpose for which those statements should be admitted. Section 59 prohibits courts from drawing an inference from the victim’s delay in reporting a sexual offence. Section 60 abolishes the cautionary rule in cases of sexual offences. Academics and courts have disagreed on the probative value of previous consistent statements. Relying on the drafting history of section 58, the author argues that a previous consistent statement can be admitted to corroborate the complainant’s evidence. The author also argues that there are circumstances in which a previous consistent statement is inadmissible; there are instances in which a court can draw a negative inference from the delay in reporting the sexual offence; and that although the cautionary rule was abolished with regard to sexual offences, courts are still required to treat with caution the evidence of victims of sexual offences who are children or single witnesses.

  • Sex+Lies+HIV=Rape? Understanding Deceptive Sex in Light of S v Conga

    On 25 September 2024 Leon Santos Conga, who infected his former partner with HIV, was sentenced to life imprisonment for rape and attempted murder by the Pretoria Magistrate’s Court. The basis for the rape conviction was that he deceived his partner into believing that he was HIV-negative, and she would not have had sex with him had she been aware of his HIV-positive status. This is the first HIV-related conviction for rape ‘committed under false pretences or by fraudulent means’ in terms of section 1(3)(c) of SORMA. Using the Conga judgment as a point of departure, this contribution critically examines the current South African legal position on deceptive sex, including the rationale for criminalising deceptive sex as rape, and each element of the crime as affected by HIV-related deception in particular. It  concludes that while the Conga ruling may be a legally correct expansion of the application of section 1(3)(c) in principle, there are persuasive policy reasons for not following its approach in future owing to the wider societal cost of criminalising HIV-related deception as rape, including exacerbating stigma against HIV-positive individuals and negative public health ramifications.

  • Recent Case: General Principles and Specific Offences

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  • Sex for Sale: The Socio-Economic Determinants Informing Law Reform in South Africa

    Prostitution is currently criminalised in South Africa. This article argues that the policy and the law regulating prostitution and prevailing socio-economic determinants are inextricably linked. For this reason, these socio-economic determinants and the proposed solutions to the interaction between poverty, inequality and unemployment must be considered before considering law reform on prostitution in South Africa. Furthermore, when drafting legislation that regulates sensitive areas of morality, such as prostitution, the underlying question, in keeping with international jurisprudence, is not why morality is being legislated for, but which interpretation or understanding of morality should be used to inform legislative reform. It is contended that the chosen legal framework is a policy choice which must be informed by available evidence and rational analysis, as opposed to political ideology. The article establishes the need for legislative and policy reform in respect of the exchange of sexual acts for reward and, by implication, peripheral crimes in South Africa, and argues that a radical feminist approach in favour of asymmetrical decriminalisation is the preferred legal pathway. It seeks to do so by identifying the context and the socio-economic determinants at work in South Africa and how the country’s unique context intersects with the chosen policy and legal framework.

  • Recent Case: General Principles and Specific Offences

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