No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2008.

This work seeks to critically examine the right to legal representation in the South African criminal justice system under a future constitutional dispensation. Extensive attention has been given to how the right to legal representation has been interpreted under the common law. Reference has been made to the united States 6f America's approach to the due process and equal protection clauses in shaping the substantive and procedural content of the right to counsel in criminal proceedings. The importance of legal representation is examined during the pre-trial, trial and sentencing stages of criminal proceedings. A brief comparative examination has been made of the right to legal representation in other foreign jurisdictions, and how the courts have dealt with indigent accused persons facing criminal charges. Proposals from different quarters in South Africa have been discussed in the hope that these proposals may still find a place in the country's final constitution. Finally, the practical implications of a qualified right to free legal representation as provided by the Interim South African Constitution is discussed. Suggestions are also made concerning the approach to be adopted by the courts in the face of judicial precedents which would be in conflict with a new value system under a Bill of Rights after 27 April 1994. / Thesis (LL.M.)-University of Natal, Durban, 1994.

The reported rate of violent crime tops the agenda on the mind of South Africans. It remains the main contending problem facing the current administration and the general populace. Its effect cut across race, class, sectors, provinces, cities, or locations. With violent crime against the individual and property continually escalating the very survival of the civil populace and the institution of democracy would remain undermined. Consequently, the effects of a high crime rate are presently affecting the image of the country abroad, as it is threatening other vital sectors of the economy such as: tourism, transport, construction and building projects and other domestic sectors of the economy. It leads to problems such as the brain drain and has a high cost associated with sustaining the criminal justice system. In the light of the above, the central thrust of this thesis is to identify the role and functions of organized criminal organizations that have proliferated and are greatly entrenched in South Africa. Although this thesis acknowledges the findings of victim surveys, which have shown that more than 50% of murders, assaults and sexual assaults in South Africa occur between people who know each other, the fact is that illicit and criminal activities such as thefts and smuggling extend beyond the shores of the country in an organized fashion. There seem to be no doubt that the activities of organized crime operate in a democratic dispensation that has adopted a broad range of rights including the right of privacy. The Government response through social policy documents has clearly failed to combat organized crime or reduce the levels of violent crime. The reason is that since organized crime is complex to observe, criminals have become more daring in their exploits. In addition this thesis would examine major policies starting with the South Africa National Crime Prevention Strategy (NCPS) and the White Paper for Safety and Security, recent budget increases to fight crime as well as a range of policies under the present ANC-led government. While not assuming that this research has a permanent solution to solving violent crime, it is a fact that income inequality, drug abuse, and poor socio economic conditions remain core problems facing the government. One is hopeful that the solution of South Africa crime problem may lie within the political leadership. That is if the political will power can be exercised and the leadership of the country and the security apparatuses become decisive in their relentless fight against crime. / Thesis (M.A)-University of KwaZulu-Natal, Durban, 2004.

LL.D. / Please refer to full text to view abstract

This thesis covers the topic of juvenile diversion with respect to keeping juveniles from progressing further into the justice system as well as keeping them out of prison. It deals with a number of areas. The first is diversion before an offence has been committed - prevention. Here a number of recommendations are made with respect to education of the child and the community in order to make prevention a priority when new diversion programmes are considered and introduced. The second area is that of diversion after the offence has taken place. This deals with diversion by the police at the moment of apprehension and recommends the introduction of cautions as a diversionary measure. The third aspect that is considered is diversion after the juvenile has been arrested and/or charged. The establishment of Reception and Assessment Centres and the setting up of Family Group Conferences are especially highlighted. The detention of the child until his/her trial is also investigated and it is concluded that this is an unnecessary measure except in extreme circumstances. The progression of the child's case to court is the fifth area considered. Here, recommendations are made as to the necessity for the proper training of court personnel and the need for the introduction of court imposed diversionary programmes before sentencing. With respect to diversion after the child has been found guilty, a number of suggestions are made as to the introduction of new sentencing options and new or improved institutions. Finally, recent reforms are discussed. The conclusion reached is that juveniles should not be imprisoned except in the most extreme cases, and that diversion programmes should be instituted as soon as possible as the basis of SouthAfrica's juvenile justice system. It is deemed essential that diversion begins with prevention and continues until sentencing is completed, and that all children are diverted unless this is not possible.

The aim of this study was to critically examined the juvenile justice system with regard to the theory of restorative justice as a better alternative to the punitive system that recognizes the rights of children as human rights is in line with the convention on the rights of the child. This research looked at punishment as a penal option, which the court imposes on a person for committing a crime. By means of a case study with regards to the One Stop Youth Justice Centre in Port Elizabeth, this study argued that the restorative method of dealing with youth offenders is a better alternative in contrast to the punitive system.

Imagine a "new South Africa" in which, to borrow an idea from a former bureaucrat of the US State Department, history has come to an end.3 A new society in which class, race and gender are no longer necessary categories to define the social phenomenon. South Africa will be, then, the "terrestrial paradise". However, I am afraid to remind the reader that in this particular African country, history has not come to an end. This country experiences the most open and rude expression of struggle (class, race and gender), and it is difficult to foresee that in this period of transition, history or the struggle, will come to an end. Popular justice vis ei vis state justice is, perhaps, one of the best examples in which the struggle between the oppressed and the oppressors is manifested. But the popular justice that I am thinking of, is that particular experience of "people’s legality" that has emerged in South Africa since the popular revolts of the mid-1980s. It could have its origins in African (customary) traditions (Bapela, 1987), but the cultural experience that emerged during the last decade went beyond its traditionalist roots (Suttner, 1986). Thus, the distinctive element of popular justice is that it has been ingrained in a democratic movement for empowering the people. What people?4 Whose justice? In the specific context of South Africa, by people I understand the working class and working classes, unemployed and marginal sectors, and different social sectors that are struggling for equality (ie the youth, women, gays and lesbians, and others). By justice, I mean the development of a new legality that will take into consideration the many gains that have been achieved within the Western legal system of "rights and obligations" (Pashukanis, 1978:100), and that goes beyond that model in the construction of a democratic society with wider social participation. So far, it has been in South Africa’s black townships that an incipient expression of popular justice has emerged.6 The 1980s people’s courts represented a synthesis of a popular project defining its own structures of legality. State repression over these popular structures did not represent the end of the project. In contrast to other points of view that have viewed this experience as a prefigurative enterprise that did not accomplish its aims (see in general Allison, 1990), I argue that the experience of popular justice of the 1980s laid the foundation for a (long term) project leading towards a radical conception of democracy (Laclau, 1990:chapter 6). / Occasional papers (University of the Witwatersrand. Centre for Applied Legal Studies) ; v. 15

No abstract available. / Thesis (M.A.)-University of KwaZulu-Natal, Durban, 2005.

The aim of this study is to suggest, by selective example, a form of jurisprudence which relates to and may have a salutary effect upon law and justice in post-apartheid South Africa. I describe three ways in which South Africa can be regarded as negotiating a transition - from apartheid to post-apartheid, from modem to post modern and from colonial to postcolonial. I argue for a jurisprudence which directly concerns itself with each of these three overlapping and mutually informing modes of transition: an approach to law and justice which is post-apartheid, postmodem and postcolonial. Since my account of law and justice engages with all three transitions, it has the potential to bring about a positive transformation in the conservative legal theory currently in favour with the judiciary. I suggest that the positivist approach followed by the judiciary during apartheid led in most cases to a removal of ethics from the legal universe and a diremption of law and justice. I contend further that the current approach of the judiciary still bears the hallmarks of positivism, in its continued adherence to the 'literal approach' to constitutional interpretation and its misunderstanding of the role of morality in adjudication. I argue that positivism, with its potential to produce injustice, should be abandoned in favour of an approach based on a postmodem epistemology which incorporates a concept of justice which is both substantive and avoids the pitfalls of natural law: the historical exhaustion of classical teleology and the failure of religious transcendence to command widespread respect. The postmodem theorists I draw on, Michel Foucault, lacques Derrida and lean-Francois Lyotard, cumulatively point to the fai lure of the Enlightenment to ground legal practice upon the universalising faculty of reason. Postmodem jurisprudence. informed by postcolonial theory, postulates justice as an ethic of alterity and is able to reintroduce ethics into law in a manner which avoids the critique of Enlightenment epistemology. Having set out the jurisprudential views of these theorists, I turn to the activity of constitutional interpretation to demonstrate the way in which the judiciary's current approach to interpretation could be positively transformed through the introduction of interpretative techniques related to poststructuralism and specifically deconstruction. I argue that interpretation is an activity necessarily informed by values and that the indeterminacy of the language of the Constitution provides the interpreter with choice. Provided the choice is ethically motivated, interpretation is a transforrnative activity. Having concluded the expository section of this dissertation, I provide a close reading of two Constitutional Court judgements, Azanian Peoples Organisation (AZAPO) v President of (he Republic of South Africa and S v Makwanyane and Another. These judgements, decided under the interim Constitution, are arguably the most important judgements of the Constitutional Court to date. They represent sites of the judiciary's internal struggle to respond to the requirement for a new epistemology and practice of interpretation, which provide the means to adjudicate justly and also suggest ways in which to justify its decisions. My study is largely restricted to these two cases, and although I refer to other cases for their bearing on particular issues, I do not aim at a comprehensive survey of the Constitutional Court's record to date. Nevertheless. this study concludes with some provisional remarks about the record of the Constitutional Court since its inception and suggests possible ways in which the jurisprudence I have argued for may be pursued in furtherance of justice. / Theses (M.A.)-University of Natal, Durban, 2000.

In recent years, youth offending has become the subject of widespread public interest and over the past few decades, various child reform movements have taken place. Child justice reform efforts focus on children’s reintegration into their families and communities and the enhancement of prospects for a crime-free life in the future. It is a system that focuses on holding children responsible through restorative justice approaches. The Child Justice Act (75 of 2008) seeks to achieve this balance by reflecting societal concerns and responding reflectively and proportionately to children in the criminal justice system. The Act is based on restorative justice principles and provides the framework for a criminal justice system specifically geared to deal with youth offenders. Section 2 of the Act makes specific provisions for the diversion of children away from the criminal justice system to suitable reintegrative and rehabilitative diversion programmes. Currently diversion programmes are aimed at the youth, with minimal input required from parents and family members. While much has been written and researched about how dysfunctional families can contribute to children turning to crime, the role of parents and families more generally in preventing repeat offending and misbehaviour is under-researched. There is also a dearth of research on the implementation and outcomes of diversion programmes and more specifically on the role of the family before, during, and after the diversion process. An intriguing issue is how parents of children attending a diversion programme view their child’s offending behaviour, the diversion process itself, their involvement in the process, and ways that can be introduced to improve and/or increase their level of involvement. The study found that the majority of the children benefitted from the programme in terms of positive behaviour change and preventing reoffending. Parents who had supported their children during the course of the programme tended to have better relationships with their children, and were able to sustain the outcomes of the programmes more efficiently. This study concludes by making recommendations in respect of how restorative justice values and principles can be adequately incorporated and enhanced through the participation of all children in conflict with the law in Family Group Conferencing. / Thesis (M.A.)-University of KwaZulu-Natal, Durban, 2012.