Theme 3 - South African Court System and Morality Transgressions- Unit 1.pptx

INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM CRIM1624 www.ufs.ac.za  Introduction to the Criminal Justice System (CRIM1624) Your lecturer Dr Patrick Bashizi Bashige Murhula...

INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM CRIM1624 www.ufs.ac.za  Introduction to the Criminal Justice System (CRIM1624) Your lecturer Dr Patrick Bashizi Bashige Murhula (Email: [email protected])  BSS (Criminology and Sociology)  Honours (Criminology)  Masters (Criminology and Forensic Studies)  PhD (Criminology and Forensic Studies)  Introduction to the Criminal Justice System (CRIM1624) YOUR LECTURER Dr Patrick Bashizi Bashige Murhula (Email: [email protected])  Office number: 24B, South Block, Main Building  Consulting hours: - Mondays (11h00 – 13h00) - Wednesdays (09h00 – 11h00)  Introduction to the Criminal Justice System (CRIM1624) SUPPORT STAFF TEACHING ASSISTANT Ms Alex Giddy (Email: [email protected])  Office number: - 8B, South Block, Main Building. TUTORS Kananelo Mohapi (Email: [email protected]) & Albie Gildenhuys (Email: [email protected])  Theme 3: The South African Court System  Two Units:  Unit 1.: South African Court System and Morality Transgressions  Unit 2.: NPA, Forensic Criminology & Sequential Functioning of CJS Theme 3: The South African Court System  Unit 1: South African Court System and Morality Transgressions  The judicial system The Department of Justice and Constitutional Development (DoJ&CD):  One of the departments that make up the CJS  Aims to uphold and protect the South African Constitution and the rule of law  Aims to deliver an efficient and responsive justice system to all in South Africa (Department of Justice and Constitutional Development, 2019).  Unit 1: South African Court System and Morality Transgressions  The judicial system Four punishment approaches:  Deterrence – the punishment is meant to discourage people from committing crime.  Prevention (incapacitation) – remove criminals from society to prevent repeat offence.  Retribution – aims to restore balance between community and offender  Rehabilitation – aims to change behaviour to reduce the likelihood of future crime.  Unit 1: South African Court System and Morality Transgressions  The judicial system Fifth punishment approach (Cullen and Jonson (2012):  Restoration – aims to repair conflict between victim and offender.  Unit 1: South African Court System and Morality Transgressions  The South African court structure SA Courts System forms a hierarchy of four levels:  Constitutional Court;  Supreme Court of Appeal;  High Courts; and  Lower Courts.  Unit 1: South African Court System and Morality Transgressions  Lower Courts: (i)Ordinary Magistrates Court (District Court):  Lowest level within geographical jurisdiction  Imprisonment not exceeding 3 years  Minor criminal matters  Not dealing with cases like murder, treason, rape, terrorism,…  Fines up to the value of R100,000.  Unit 1: South African Court System and Morality Transgressions  Lower Courts: (ii) Regional Magistrates Courts:  Imprisonment for a period not exceeding 20 years  They have jurisdiction over all offences except treason.  May impose criminal fines up to the value of R300,000.  Unit 1: South African Court System and Morality Transgressions  High Courts:  A court of first instance and can be a court of appeal for the Magistrate’s Court.  Attends to civil and criminal matters and matters involving a person’s status (adoption, insolvency,…).  Civil matters which involve claims of more than R100 000.  Criminal cases which are of a serious nature (Premeditated murder, serial crimes, serious commercial crimes and politically motivated serious crimes.)  No limitations on sentencing.  Unit 1: South African Court System and Morality Transgressions  Supreme Court of Appeal:  Civil and criminal matters, excluding constitutional matters.  It only hears matters from the High Court.  Consists of the President, Deputy President (of SCA) & 23 judges  Decisions binding on all lower courts.  Unit 1: South African Court System and Morality Transgressions  Constitutional Court:  Highest Court – links to SA Constitution (Supreme Law of the Land).  Referred from the Supreme Court of Appeal and the High Court.  Deals with constitutional matters.  Consists of Chief Justice, Deputy Chief Justice & 9 Constitutional Court judges.  Unit 1: South African Court System and Morality Transgressions  Constitutional Court:  Parliament is bound by the decisions of the CC.  Function = adherence to the Constitution  Independent of all other courts  NOT a trial court.  Unit 1: South African Court System and Morality Transgressions  Other criminal courts in South Africa are: Small Claims Court:  CIVIL  Monetary claims instituted by natural persons against natural or juristic persons; not the State.  Its jurisdiction limit is currently R 15 000.  Presiding officers are known as “Commissioners”  Unit 1: South African Court System and Morality Transgressions  Other criminal courts in South Africa are: Traditional Courts:  Traditional community areas  Customary issues within customary law  Uses Indigenous law and customs  Headman or Chief  Purpose:  Uphold the value of customary law  alignment of restorative justice & Constitution.  Unit 1: South African Court System and Morality Transgressions  Other criminal courts in South Africa are: Community courts. Courts for income tax offenders. Municipal courts.  Unit 1: South African Court System and Morality Transgressions  Key Roleplayers: 1. Presiding Officers: o Judiciary (judges and magistrates; independent & neutral parties) o Preside over criminal and civil trials No prior knowledge of the facts or evidence of the cases No loyalty to the State or any other organization.  Unit 1: South African Court System and Morality Transgressions  Key Roleplayers: 2. Prosecutors:  Power to institute criminal proceedings on behalf of the State.  Independent & impartial  Discontinue criminal proceedings where necessary.  Flexible power to decide whether to prosecute or not.  Attorney for the State and represents the victim in criminal cases.  Unit 1: South African Court System and Morality Transgressions  Key Roleplayers: 3. Legal Representatives: o Advocates:  Specialist attorneys who litigate in the High Court.  Briefed by attorneys where the case is more difficult or serious.  Any court.  Unit 1: South African Court System and Morality Transgressions  Key Roleplayers: 3. Legal Representatives: o Attorneys:  Behalf of the accused.  Specialise in different fields.  Country’s lower courts and can also acquire the right of appearance in the superior courts.  Unit 1: South African Court System and Morality Transgressions  Key Roleplayers: 3. Other Role Players: o Clerk of Court:  Administrative side of running the court. o Interpreter:  Translation services to those who do not speak English as their mother tongue. o Court Orderly:  Police officer assigned to keep good order & security in the courtroom. Morality Transgressions:  Unit 1: South African Court System and Morality Transgressions  Morality Transgressions: o Definition and characteristics: Consensual crimes:  Transgressions against the moral fabric of society (McLaughlin, 2001; Dimock, 2015); acts that violate the norms or threaten the perceived well-being of society.  Unit 1: South African Court System and Morality Transgressions  Definition and characteristics: The concepts of ‘victimless’ and ‘consensual’ crimes can be vague and, therefore, gave rise to the new concept of fringe offences. Clement and Barbrey (2008) explain that fringe offences:  Pose a marginal level of harm to society and a debatable amount of harm to the transgressor.  Involve non-violent offences that could typically be considered minor violations  Unit 1: South African Court System and Morality Transgressions  Consensual crime and law Consensual crimes present a challenge for lawmakers and implementers:  It is legal to buy and consume alcohol and tobacco and cars that can exceed the speed limit.  Yet each year, more people die from tobacco, alcohol and vehicle-related causes than from all illegal drugs combined.  Unit 1: South African Court System and Morality Transgressions  Consensual crime and law Decriminalisation:  Removes certain type of offences from the range of prosecution and punishment. Partial decriminalization:  Some consensual acts will not be prosecuted but will remain illegal.  Unit 1: South African Court System and Morality Transgressions  Consensual crime and law Legalising abortion in South Africa  The Choice on Termination of Pregnancy Act 92 of 1996 (CTOP) allows abortion on demand until 12 weeks of gestation (which is roughly 10 weeks of pregnancy).  Unit 1: South African Court System and Morality Transgressions Legalising abortion in South Africa  Between 13 and 20 weeks of gestation (11 to 18 weeks of pregnancy), only a medical doctor may perform an abortion only if:  There is a risk to the woman’s mental or physical health  There is a substantial risk that the foetus would have a severe physical or mental abnormality  The pregnancy resulted from rape or incest  The pregnancy would severely affect the social and economic status of the woman.  Unit 1: South African Court System and Morality Transgressions  Commercial sex work Sex work and brothel keeping is currently illegal in South Africa, but it still flourishes. It is a commercial activity where financial gain is the primary motivation of service providers.  Unit 1: South African Court System and Morality Transgressions  Commercial sex work Myburgh (2019) – four South African pathways or routes that lead women to commercial sex work:  Economic circumstances: Source of income due to little education and skills. Runaway behaviour: Ended up in the sex industry because they had nowhere to go. Physical and sexual abuse: Became trapped in the sex work industry at the hands of pimps, colleagues, clients and police officials. Substance abuse: started using substances in their teens and turned to sex work to support their habit.  Unit 1: South African Court System and Morality Transgressions  Commercial sex work Direct sex workers:  Commercial sex workers who actively engage in soliciting clients (e.g. street-based sex workers, escorts ). Indirect sex workers:  Make use of a situation to solicit either financial or material gain by offering sex (masseurs and masseuses – work at massage parlours).  Unit 1: South African Court System and Morality Transgressions  Decriminalising sex work Supporters of the free-choice view - decriminalisation has advantages:  Relieve desperate women of further degradation.  Earn income and create opportunities.  Reduce women’s financial dependence on men.  Facilitate regulation of an industry that is currently run by brothel owners and pimps.  Allow sex workers to organise themselves into labour groups.  Facilitate outreach and exit services for sex workers.  Unit 1: South African Court System and Morality Transgressions  Decriminalising sex work Objectors to decriminalisation – sex work has a negative impact on society:  A decline in public morals and the degradation of neighbourhoods.  Serious health risks for workers and clients, including HIV infection.  Would leave the business if they could make a living that provides a similar income, therefore ‘free choice’ is incorrect.  Unit 1: South African Court System and Morality Transgressions  Substance abuse Decriminalising substance abuse o Some people consider drug use to be a private matter. o However, the role of drugs in committing a crime cannot be ignored. o The relationship between drug use and crime can be explained with three models (Powell, 2011): the psychopharmacological model, the economic- compulsive model, and the systemic model.  Unit 1: South African Court System and Morality Transgressions  Substance abuse The psychopharmacological model:  Violence is a direct result of the acute effects that psychoactive drugs have on the user. The economic-compulsive model:  Drug users commit economically motivated crimes in order to support their drug habits. Systemic model:  Drug culture as being naturally violent Unit 1: South African Court System and Morality Transgressions Thank You!