scholarly journals THE PRACTICE OF “UKUTHWALWA”, THE CONSTITUTION AND THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT

Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
David McQuoid-Mason
Keyword(s):  
Rural Communities ◽  
Criminal Law ◽  
Cultural Practices ◽  
Common Law ◽  
Customary Law ◽  
Constitutional Rights ◽  
Eastern Cape ◽  
Sexual Offences ◽  
The Law ◽  
The Republic

The practice of “ukuthwalwa” has been described as a “mock abduction” or an “irregular proposal” aimed at achieving a customary law marriage. It has been said that ukuthwalwa may be used for a number of purposes, such as: (a) to force the father to give his consent; (b) to avoid the expense of a wedding; (c) to hasten matters if the woman is pregnant; (d) to persuade the woman of the seriousness of the suitor’s intent; and (e) to avoid payment of lobolo. At common law the courts have stated that ukuthwalwa should not be used “as a cloak for forcing unwelcome attentions on a patently unwilling girl”, and have held that abduction by way of  ukuthwalwa is unlawful. However, it has been suggested that if there is a belief by the abductor that the custom of ukuthwalwa was lawful the abduction would lack fault, and that if the parents or guardians consented to the taking it would not be abduction, because abduction is a crime against parental authority. Where the parents or guardians consent to the abduction the crime may amount to assault or rape. Some of these potential lacunae in the law seem to have been addressed by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. There has recently been public outrage about the practice of ukuthwalwa in the Eastern Cape in which girls between the ages of 12 and 15 years of age were being abducted and forced into marriages against their consent. This aspect of ukuthwalwa is a breach of the common law and the repealed section of the Sexual Offences Act (s 9 of the SexualOffences Act 23 of 1957. It is also completely contrary to the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa Act, 1996) and the Sexual Offences Amendment Act (Chapters 2 and 3 of the Sexual Offences Amendment Act). Part of the problem may be that some rural communities think that cultural practices trump constitutional rights, whereas according to the law the reverse applies.

Child Protection through the Criminal Law

2020 ◽  
pp. 85-114
Author(s):  
Kenneth McK. Norrie
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Child Protection ◽  
Adult Population ◽  
Common Law ◽  
Legal Basis ◽  
Sexual Offences ◽  
The Common ◽  
The Law ◽  
A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

8. Inchoate offences

Criminal Law ◽  
2019 ◽  
pp. 304-354
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Legal Protection ◽  
Child Victims ◽  
Sexual Offences ◽  
Serious Crime ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter discusses inchoate crimes. A person does not break the criminal law simply by having evil thoughts. Where, however, a person takes steps towards effecting that plan to commit a substantive offence which is more than merely preparatory, he may in the process commit one of the inchoate crimes of attempt, conspiracy, or encouraging or assisting the commission of an offence. The chapter examines relevant offences in the Serious Crime Act 2007 concerning encouraging or assisting and the Act’s abolition of the offence of incitement. It outlines the legal protection from prosecution provided to particular vulnerable victims who might otherwise be liable for encouraging others to commit offences against them, such as some child victims of sexual offences. The chapter analyses the statutory offence of conspiracy and outlines common law offences of conspiracy to defraud and conspiracy to corrupt public morals or to outrage public decency. It examines the requirements for liability for attempt. The Law in Context feature examines critically the growing range of inchoate offences for terrorist offences.

8. Inchoate offences

2021 ◽  
pp. 310-359
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Legal Protection ◽  
Child Victims ◽  
Sexual Offences ◽  
Serious Crime ◽  
The Law

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses inchoate crimes. A person does not break the criminal law simply by having evil thoughts. Where, however, a person takes steps towards effecting that plan to commit a substantive offence which is more than merely preparatory, he may in the process commit one of the inchoate crimes of attempt, conspiracy, or encouraging or assisting the commission of an offence. The chapter examines relevant offences in the Serious Crime Act 2007 concerning encouraging or assisting and the Act’s abolition of the offence of incitement. It outlines the legal protection from prosecution provided to particular vulnerable victims who might otherwise be liable for encouraging others to commit offences against them, such as some child victims of sexual offences. The chapter analyses the statutory offence of conspiracy and outlines common law offences of conspiracy to defraud and conspiracy to corrupt public morals or to outrage public decency. It examines the requirements for liability for attempt. ‘The law in context’ feature in this chapter examines critically the growing range of inchoate offences for terrorist offences.

scholarly journals TALKING ABOUT RAPE – AND WHY IT MATTERS: Adjudicating rape in the Western Cape High Court

2016 ◽  
Author(s):  
Stacy Moreland
Keyword(s):  
Criminal Law ◽  
Institutional Factors ◽  
Western Cape ◽  
Sexual Offences ◽  
High Court ◽  
The Law ◽  
The Relationship ◽  
Selection Of ◽  
Do So

This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. This article analyses a small selection of recent judgements of the Western Cape High Court2 (WCHC) for answers. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so.

Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

Tanzanian Criminal Law

2020 ◽  
pp. 112-116
Author(s):  
Peter H. Reid
Keyword(s):  
Death Penalty ◽  
Criminal Law ◽  
Common Law ◽  
Penal Code ◽  
Customary Law ◽  
Evidence Code ◽  
British Colony ◽  
British Colonial ◽  
Civil Codes ◽  
Procedure Codes

“If a Person is convicted of murder, the death penalty is obligatory.” Although Tanzanian criminal law is derived from the British colonial legal system, by the time of trial changes had been made. The Indian Codes—that is, Penal Code, Evidence Code, and certain civil codes—had been developed starting in the mid-1820s by legal scholars in England. These scholar took the unwritten common law of England and produced coherent, consistent codes to be used in the British colony of India. The Indian Codes were adopted in East Africa, including Tanganyika, in the early 1920s. This chapter describes the criminal law applicable to the Bill Kinsey case, including the interplay of customary law with the colonial-based evidence, criminal, and criminal procedure codes.

Criminal Law Concentrate

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
Mens Rea ◽  
Sexual Offences ◽  
Essential Information ◽  
Actus Reus ◽  
Recent Developments ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Criminal Law Concentrate covers fundamental principles of this area of law and helps the reader to succeed in exams. Topics covered include the basis of criminal liability, actus reus, mens rea, and strict liability. The chapters also examine offences such as non-fatal offences, sexual offences, homicide, inchoate offences, theft, and fraud. Defences are also examined in the final two chapters. This edition has been updated to include: recent developments in the law and new cases such as Jogee, Conroy, Golds, Ivey, and Joyce; more detail on sexual offences; more revision tips and tables to improve learning; and an ‘Exam essentials’ feature.

Criminal Law Concentrate

2020 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
Mens Rea ◽  
Sexual Offences ◽  
Essential Information ◽  
Actus Reus ◽  
Recent Developments ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Criminal Law Concentrate covers fundamental principles of this area of law and helps the reader to succeed in exams. Topics covered include the basis of criminal liability, actus reus, mens rea, and strict liability. The chapters also examine offences such as non-fatal offences, sexual offences, homicide, inchoate offences, theft, and fraud. Defences are also examined in the final two chapters. This edition has been updated to include: recent developments in the law and new cases such as Jogee, Conroy, Golds, Ivey, and Joyce; more detail on sexual offences; more revision tips and tables to improve learning; and an ‘Exam essentials’ feature.

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