In South Africa, the National Prosecuting Authority (NPA), representing the state, normally prosecutes criminal suspects. The NPA must make decision on whether to prosecute or not to prosecute in an impartial manner, without fear, favour or prejudice. Members of the NPA must also adhere to prosecuting policy and policy directives. It is important for a single, impartial, prosecuting authority to make decisions on who to prosecute and to conduct prosecutions to ensure that all suspects are treated fairly. Where the prosecution of criminal suspects is in effect privatised, the law will not be applied equally to all. Suspects who fall foul of private individuals with pots of money or fall foul of private organisations with their own political agendas might be prosecuted, while other suspects might escape justice. This is fundamentally unfair and will pose a threat to the constitutional order. Although it is not clear that the current leadership of the NPA always make decisions on who to prosecute and who not to prosecute in an impartial and competent manner (as the NPA’s catastrophic decision to prosecute Finance Minister Pravin Gordhan clearly demonstrated), the wholesale privatisation of prosecutions will strike at the very heart of the promise in the Constitution that everyone is equal before the law and has the right to equal protection and benefit of the law. However, section 7 and 8 of the Criminal Procedure Act (CPA) provide for limited exceptions to the rule that the NPA, representing the state, should prosecute criminal suspects. Section 8 of the CPA deals with private prosecutions by bodies who has a statutory right to institute such prosecutions and is not applicable to Afriforum who is not a statutory body. In terms of section 7 of the CPA some private individuals may launch a private prosecution once the NPA has declined to prosecute a suspect and has issued a so called nolle prosequi certificate to that effect. The NPA has a duty to provide such a certificate when it has declined to prosecute. The private prosecution can then be conducted either in person or with the assistance of a legal representative. https://constitutionallyspeaking.co.za/gerrie-nels-politically-dubious-decision-extremely-difficult-to-institute-private-prosecutions/ ... See more
The decision by rock star prosecutor Gerrie Nel to resign from the National Prosecuting Authority (NPA) to join the controversial Afriforum in order to pursue private prosecutions on their behalf, is odd. Apart from the fact that Afriforum is an organisation with a dubious political mandate and hist... ... See more
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ARTICLE: THE NEW AND IMPROVED 2018 HATE SPEECH BILL The Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill) has recently been tabled before Parliament. It is an improved version of its 2016 predecessor, which was then in draft form. In an open and democratic society, the freedom to express ideas is important, but that freedom has to be underpinned by considerations of other values including dignity, equality and freedom. It is this delicate balance which the Bill by and large successfully achieves. Rightly so, the Bill creates the offence of hate crime motivated by prejudice. The hate crime means that where an individual is found guilty of a criminal offence motivated by prejudice or intolerance, towards the victim, then the additional charge of a hate crime arises. There are widely-reported incidents of groups and individuals murdered and subjected to other harm or abuse over prejudice influenced by for example, sexuality or nationality. It is therefore important for South Africa’s penal laws to develop in order to deter this particular type of criminal behaviour. The first intention of the Bill therefore is a welcome development in South African law, as this plugs a legislative gap and further serves as a deterrent to would-be offenders. There is a need for legal regulation to guide behaviour change. New categories of individuals and groups protected under hate crimes are introduced in addition to those from the draft Bill. These are: age, nationality, migrant or refugee status; as well as political affiliation or conviction. Given well-documented widespread xenophobic violence, as well as political killings, it is important for South Africa’s laws to recognise the prejudice and intolerance driving such crimes and to punish the offenders accordingly. Political affiliation or conviction is included as a ground for hate crime but is not included as a ground for hate speech. This stands out because all of the other characteristics listed under hate crimes - such as age or albinism - are also listed as hate speech. This suggests a response to the concerns previously raised over the possible introduction of insult laws to curtail the criticism of high-ranking political office holders. It is also testament to the importance of public participation, given that this aspect of the Draft Bill had been severely criticised by civil society and lobby groups alike. Significantly so, the Bill is better aligned to the Constitution, in so far as the Constitution proscribes certain forms of speech, namely speech which is harmful or incites harm, promotes or propagates hatred. However, the Bill goes beyond the protected categories listed in the Constitution, which are: race, ethnicity, gender and religion, to include 11 other categories such as culture, disability, sexual orientation and HIV status. This extension of protected categories is a justifiable infringement of freedom of expression, given that the Constitution allows for the limitation of rights. Such limitation of rights can only be in terms of a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The inclusion of categories such as age should be welcomed, given the vulnerability of both South Africa’s elderly, as well as children. As with its predecessor, the Bill criminalises hate speech, but perhaps the inclusion of defence to a hate speech charge is what ultimately rescues the hate speech provisions contained in the Bill. Defences to a charge of hate speech recognise that in certain context-specific instances - such as artistic creativity, performance, academic or scientific activity - there can be allowance for speech which would otherwise be considered as constituting hate in terms of the Bill. Such defence would also give protection to religious practices in so far as such practices “do not advocate hatred that constitutes incitement to cause harm…”. The defences include fair and accurate reporting or commentary in the public interest. This means that the likelihood of “insult laws” being used to stifle the press and other media remains low and South Africa will continue to enjoy robust forms of expression. It is also in accordance with the understanding that political spaces enjoy much more robust forms of expression than otherwise enjoyed by individuals in private spaces. Arguably the most controversial aspect of the Bill is the criminalisation of hate speech, with possible imprisonment, for a period of three years, to boot. It is perhaps this provision which raises eyebrows and lends credence to the criticism that the Bill may very well serve to chill free expression in creating such extreme penalties for hate speech. Arguably it is perhaps the most severe forms of hate speech which would be subject to such harsh measures in order to send a strong message of deterrence. The Bill does not stop at criminalising hate crimes and hate speech. It takes the important step of tasking the State (presumably government at all levels, as well as state-owned entities) and the South African Human Rights Commission (SAHRC) with promoting awareness of, and combating, both hate crimes and hate speech. The President is further mandated to appointment Cabinet Members who will conduct education and information campaigns about hate crimes and hate speech. The inclusion of the SAHRC is a welcome development, given its vital role in supporting South Africa’s constitutional democracy. One hastens to add cautious optimism in this regard, given suggestions of lack of partiality in resolving complaints of racism levelled against the SAHRC. Free speech absolutists may disagree with the criminalisation of hate speech and punt the Bill as an example of thought control. However, this view possibly loses sight of the balancing nature of the Constitution in which most rights are subject to limitation. Professor Elmien du Plessis, writing for The Conversation, quotes the philosopher Karl Popper in observing that “…unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.” Perhaps that is the paradox which the Bill seeks to address - robust freedom of expression while ensuring that the social fabric of South Africa remains intact. Should the Bill be passed into law, then South Africa joins other nations including Germany, the Netherlands and the United Kingdom in criminalising certain forms of speech. As such, it would not appear to be an anomaly for South Africa to enact the Bill as it stands. Of course, the ultimate test will be whether the Bill does indeed deter the growing incidents of hate crime and hate speech. By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights 17 April 2018 From CCR ... See more
Judge Elias Matojane said based on the submission presented to the court "we are of the view that there is no prospect that another court would come to a different conclusion... therefore the leave to appeal is refused." https://www.fin24.com/Economy/Eskom/breaking-molefe-leave-to-appeal-paying-back-pension-money-dismissed-20180417 ... See more
The North Gauteng High Court has dismissed an application by former Eskom CEO Brian Molefe for leave to appeal a ruling that he pay back the part of his pension payout he already received.
On Robin Williams' birthday, we remember the roles that will always inspire us.
“The criminalization of abortion is an extreme form of violence against women. It doesn’t reduce abortions – it just makes them unsafe,” Shetty told the Guardian in Buenos Aires after a meeting with Argentina’s President Mauricio Macri. https://www.theguardian.com/world/2018/apr/15/latin-america-abortion-laws-violence-against-women-amnesty-international-salil-shetty?CMP=twt_gu ... See more
Salil Shetty, Amnesty International’s secretary general, urges Argentina to reform harsh legislation and says human rights have deteriorated across region
An act can fall short of criminal and still be a deep and awful wrong. WhatsApp messages and texts introduced as evidence during the trial revealed that these men, these non-rapists, spoke about women with the deepest, most dehumanising contempt. https://www.theguardian.com/commentisfree/2018/apr/15/after-rape-trials-is-court-of-public-opinion-now-trumping-the-law?CMP=twt_gu&__twitter_impression=true ... See more
Two Ulster rugby players found not guilty of rape have had their contracts revoked
A private jet used by the controversial Gupta family who are at the centre of corruption allegations against ex-president Jacob Zuma has been flown back to South Africa where it was grounded by a c…
The piracy of era-defining images taken by black South African photographers is once again in the spotlight following the death of Winnie Madikizela-Mandela, which has resulted in a spike in the unauthorised use of photos captured by the select few photographers who were given access to the Mandelas’ lives. Madikizela-Mandela’s death has also laid bare a roaring international trade in counterfeit photographs implicating both rogue merchants and reputable agents. https://mg.co.za/article/2018-04-13-00-exposed-sas-iconic-pics-plundered ... See more
Our photographic heritage is being stolen by pirates peddling ‘pictures of pictures’