Thesis (M.A.)--Carleton University, 2000. / Also available in electronic format on the Internet.

Thesis (LL.M.). / Written for the Faculty of Law. Title from title page of PDF (viewed 2008/05/13). Includes bibliographical references.

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The subject of this thesis is criminal justice policy. It focusses on diversion, that is, alternatives to the court system. I argue that the current criminal justice system, which is rooted in retributive principles, has shortfalls which are of such a degree that it makes sense to consider alternatives. A new movement in criminal justice policy, restorative justice, reflects a theory that may provide a framework for new programs. Restorative justice is based on principles that are fundamentally different from retributive ideology and the translation of these ideas results in dramatically different programs. In my thesis I delineate the differences between restorative and retributive principles. The retributive system leads to dissatisfaction among the stakeholders in the criminal process. The purpose of the thesis is to investigate whether implementation of restorative justice principles could lead to more satisfaction and a higher quality of justice. The restorative justice theory has a strong rhetoric, as will be made clear. The implementation of restorative programs, however, does not develop quickly. There are several reasons for the slowness, including the reluctance of criminal justice officials to give new initiatives a chance to develop and to co-operate in their development. I describe three restorative programs that divert criminal cases from the court system, they are: mediation, dading, and family group conferences. On the basis of these programs I make clear which are the strengths and the possible weaknesses of restorative justice. The comparison of different programs from different countries, provides a useful insight in the dynamics of restorative justice in practice. International research and comparison will lead to understanding in how to design a suitable and valuable process. My conclusion is that a truly restorative system is neither a realistic, nor a wished situation. For a variety of cases, though, restorative programs provide a better locus for resolving the problems involved in crime, than the court process does. I therefore advise that the development of restorative programs must go on.

The subject of this thesis is criminal justice policy. It focusses on diversion, that is, alternatives to the court system. I argue that the current criminal justice system, which is rooted in retributive principles, has shortfalls which are of such a degree that it makes sense to consider alternatives. A new movement in criminal justice policy, restorative justice, reflects a theory that may provide a framework for new programs. Restorative justice is based on principles that are fundamentally different from retributive ideology and the translation of these ideas results in dramatically different programs. In my thesis I delineate the differences between restorative and retributive principles. The retributive system leads to dissatisfaction among the stakeholders in the criminal process. The purpose of the thesis is to investigate whether implementation of restorative justice principles could lead to more satisfaction and a higher quality of justice. The restorative justice theory has a strong rhetoric, as will be made clear. The implementation of restorative programs, however, does not develop quickly. There are several reasons for the slowness, including the reluctance of criminal justice officials to give new initiatives a chance to develop and to co-operate in their development. I describe three restorative programs that divert criminal cases from the court system, they are: mediation, dading, and family group conferences. On the basis of these programs I make clear which are the strengths and the possible weaknesses of restorative justice. The comparison of different programs from different countries, provides a useful insight in the dynamics of restorative justice in practice. International research and comparison will lead to understanding in how to design a suitable and valuable process. My conclusion is that a truly restorative system is neither a realistic, nor a wished situation. For a variety of cases, though, restorative programs provide a better locus for resolving the problems involved in crime, than the court process does. I therefore advise that the development of restorative programs must go on. / Law, Peter A. Allard School of / Graduate

Thesis (M.A.)--Carleton University, 2003. / Includes bibliographical references (p. 92-96). Also available in electronic format on the Internet.

Thesis (M.A.)--Carleton University, 2004. / Includes bibliographical references (p. 126-134). Also available in electronic format on the Internet.

In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.

In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.

The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.