South African Law Reform Commission Research Articles

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

GESKIEDENIS VAN DIE MAN- LIKE EERSGEBOORTEREGSREëL IN DIE INHEEMSE REG DEEL II: ONLANGSE REGSPRAAK

This article explores the recognition of the male primogeniture rule in the customary law of succession. In the first of three parts, part one of the article traces the recognition of the rule in the various decisions of the Appeal Court of the Commissioners' courts. Part two deals with the constitutionality of the male primogeniture rule in terms of recent case law, whereafter the discussion is concluded in part three with an overview of the recommendations of the South African Law Reform Commission in this regard.

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.

Policy Considerations that Could Justify the Enactment of a Crime Victim Compensation Fund in South Africa

It may be argued that the current legal position relating to crime victim compensation is unsatisfactory. It should therefore be asked whether there is a potential alternative for crime victim compensation. Many foreign jurisdictions have elected to enact a statutory compensation fund. In its report on the viability of enacting a similar type of fund for crime victims in South Africa, the South African Law Reform Commission stated that a justification for the establishment of a statutory crime victim compensation fund in South Africa remains absent. This article focusses on the justification issue. To determine whether a fund could be established in the South African context the following two-step approach has been outlined. First, a general theoretical framework must be advanced based on which future statutory reform of the law of delict may be justified. Elsewhere I have already done this by identifying policy considerations which the legislature has used to reform specific areas in the law of delict. These considerations include the risk of harm and the concomitant risk of receiving no compensation if the risk of harm materialises; the promotion of the right to social security and the evidentiary difficulties associated with proving fault (in the form of negligence). The second step towards justification is to establish whether these considerations could also justify the proposed development of the law through the enactment of a crime victim compensation scheme in South Africa.

GESKIEDENIS VAN DIE MANLIKE EERSGEBOORTE- REGSREëL IN DIE INHEEMSE REG DEEL III: VOORSTELLE VAN DIE SUID-AFRIKAANSE REGSKOMMISSIE

In Part III of this article various statutory implications for and recommendations of the South African Law Reform Commission regarding the male primogeniture rule in the customary law of succession are examined. From the discussion it seems clear that a partial unification of the customary law of succession and the common law is envisaged, in so far as it relates to the inheritance of property. In its most recent proposal the South African Law Reform Commission recommended the reformation of the customary law of succession in legislation aimed at the harmonization of the customary and common law, with the retention of some customary aspects. On the one hand, the South African Law Reform Commission proposals exclude succession in positions of traditional leadership from the proposed reform, but on the other hand the Traditional Leadership and Governance Framework Act 41 of 2003 promotes the principle of gender equality also with regard to positions in traditional leadership.

DEBT RELIEF FOR CONSUMERS − THE INTERACTION BETWEEN INSOLVENCY AND CONSUMER PROTECTION LEGISLATION (PART 1)

In March 2002 the Department of Trade and Industry established a task team to review the legislation that has an impact on consumer credit. This resulted in a detailed report containing proposals for a new regulatory framework for consumer credit. Subsequently, in June 2005 the National Credit Bill was tabled in Parliament. Measures aimed directly at resolving over-indebtedness in the form of debt re-arrangement are introduced by the Credit Bill. The report also highlighted weaknesses in the current insolvency legislation especially with regard to available debt relief measures for consumers. It should, however, be noted that the 2000 Insolvency Bill inter alia provides for an alternative to insolvency proceedings in the form of a pre-liquidation composition.This article examines the interaction between current and proposed insolvency and consumer protection legislation with regard to debt relief measures for consumers. The question arises whether the current and the proposed debt relief measures, when introduced, will not overlap unnecessarily. Furthermore, the question whether these measures will provide adequate relief to deal with current demands is also addressed. The South African Law Reform Commission when proposing the pre-liquidation composition in the Insolvency Bill, did not indicate what its relationship should be with the administration order procedure in terms of section 74 of the Magistrates Courts' Act. The question is therefore whether a need for administration orders will still exist if the proposed legislation relating to the pre-liquidation composition is introduced. Lastly, as South African law does not offer debt relief to debtors who have no income and no assets, proposals by the Department of Trade and Industry in the United Kingdom for a non-court based scheme of debt relief aimed at such debtors (the so-called “NINA” cases) are investigated in order to supply guidelines for South African law reform in this regard.It is submitted that the proposals in the Credit Bill on debt re-arrangement could assist debtors to manage their debt in certain circumstances. It is furthermore suggested that a combination of the proposed pre-liquidation composition and a modified administration order procedure could offer the necessary debt relief in situations where a debtor, apart from his debt in terms of a credit agreement, also has other outstanding debts. Finally, it is submitted that the “NINA” scheme could offer some guidance for the reform of South African law regarding debt relief to debtors who have no income and no assets.

Towards a more uniform approach to parenting coordination in South Africa

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, we have the Guidelines on the Practice of Parenting Coordination in South Africa (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children’s participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, we also have various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and our court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator’s relationship with the court and the parties’ legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account.

Towards a more uniform approach to parenting coordination in South Africa

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, we have the Guidelines on the Practice of Parenting Coordination in South Africa (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children’s participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, we also have various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and our court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator’s relationship with the court and the parties’ legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account.

DEBT RELIEF FOR CONSUMERS − THE INTERADEBT RELIEF FOR CONSUMERS − THDEBT RELIEF FOR CONSUMERS − THE INTERACTIE INTERACTION BETWEEN INSOLVENCY AND CONSUMER PROTECTION LEGISLATION (PART 2)CTION BETWEEN INSOLVENCY AND CONSUMER PROTECTION LEGISLATION (PART 2)

In March 2002 the Department of Trade and Industry established a task team to review the legislation that has an impact on consumer credit. This resulted in a detailed report containing proposals for a new regulatory framework for consumer credit. Subsequently, in June 2005 the National Credit Bill was tabled in Parliament. Measures aimed directly at resolving over-indebtedness in the form of debt rearrangement are introduced by the Credit Bill. The report also highlighted weaknesses in the current insolvency legislation especially with regard to available debt relief measures for consumers. It should, however, be noted that the 2000 Insolvency Bill inter alia provides for an alternative to insolvency proceedings in the form of a pre-liquidation composition. This article examines the interaction between current and proposed insolvency and consumer protection legislation with regard to debt relief measures for consumers. The question arises whether the current and the proposed debt relief measures, when introduced, will not overlap unnecessarily. Furthermore, the question whether these measures will provide adequate relief to deal with current demands is also addressed. The South African Law Reform Commission when proposing the pre-liquidation composition in the Insolvency Bill, did not indicate whatits relationship should be with the administration order procedure in terms of section 74 of the Magistrates Courts’ Act. The question is therefore whether a need for administration orders will still exist if the proposed legislation relating to the preliquidation composition is introduced. Lastly, as South African law does not offer debt relief to debtors who have no income and no assets, proposals by the Department of Trade and Industry in the United Kingdom for a non-court based scheme of debt relief aimed at such debtors (the so-called “NINA” cases) are investigated in order to supply guidelines for South African law reform in this regard. It is submitted that the proposals in the Credit Bill on debt re-arrangement could assist debtors to manage their debt in certain circumstances. It is furthermore suggested that a combination of the proposed pre-liquidation composition and a modified administration order procedure could offer the necessary debt relief in situations where a debtor, apart from his debt in terms of a credit agreement, alsohas other outstanding debts. Finally, it is submitted that the “NINA” scheme could offer some guidance for the reform of South African law regarding debt relief to debtors who have no income and no assets.

Should South Africa Criminalise Ukuthwala Leading to Forced Marriages and Child Marriages?

In 2014 the South African Law Reform Commission (SALRC)released a Discussion Paper on the practice of ukuthwala. TheDiscussion paper was revised and released again in 2015 toinclude public consultations and the proposed Prohibition ofForced Marriages and Child Marriages Bill (Prohibition Bill). TheProhibition Bill introduces an expanded crime of forcedmarriages and child marriages, including because of ukuthwala.In view of the SALRC's proposed Prohibition Bill, this paperinvestigates whether South Africa should criminalise ukuthwalaor not. The paper also examines the advantages anddisadvantages of criminalising breaches of ukuthwala in theprotection of women and girls affected by the practice by drawingupon the field research findings from the community where theS v Jezile 2015 2 SACR 452 (WCC) case originated. Amongother findings, the field research show that the practice ofukuthwala is deeply rooted in the communities where it is stillprevalent to the extent that the approach taken by the ProhibitionBill, expecting the victims to report their own parents or familymembers to law enforcement agents, might force the practice togo underground. Ultimately, we suspect that this might make itmore difficult to protect women and children's rights violationsassociated with ukuthwala. We therefore recommend that toeffectively address the malpractices surrounding ukuthwala, theprocess of law reform look at the elements of ukuthwala, theprocedure that is followed, appreciate the cultural significance ofthe practice, as well as understand the merits and demerits ofthe customary delictual claims that are already used bycommunities where processes of the practice have beenbreached. In this way, communities will be more receptive to anygovernment's efforts that are aimed at addressing forced andchild marriages linked to ukuthwala. In addition, we submit thatunless government prioritises awareness campaigns into thecommunities that are going to be affected by the proposed lawreform, such law, will again be what Himonga calls "paper law".

THE AWARDING OF POST-DIVORCE MAINTENANCE TO A MUSLIM EX-WIFE AND CHILDREN IN THE SOUTH AFRICAN COURTS: THE INTERACTION BETWEEN DIVINE AND SECULAR LAW

The article discusses the differences between the South African civil law and Islamic law with specific reference to post-divorce spousal maintenance as well as postdivorce maintenance of children in light of recent case law, Mahomed v Mahomed [2009] JOL 23733 (ECP). The issue of post-divorce spousal maintenance is especially controversial and it is noted that in both systems the issue should not beseen in isolation, but in conjunction with the other protection possibilities within each of these systems. The apparent conflict between the South African constitutional principles and the principles of Islam is noted and compared to the Indian legal and constitutional experience, although reference is also made to the Algerian legal position. Drawing an analogy with the South African legal developments vis-à-vis customary marriages, the article concludes and submits that any enactment by the South African legislature, dealing with the maintenance of spouses and children after divorce, whether in the format of the Muslim Marriage Bill as set out in the 2003 South African Law Reform Commission Report, or in any other format, should take cognizance of the rulings and teachings of Islam.

The Continued Criminality of Selling Sex: A Trajectory of South African Sex Work Law Reform

AbstractThis article explores the regulation of sex work in South Africa and follows the trajectory of the South African Law Reform Commission (SALRC) in investigating whether sex work should be decriminalized. The legal regulation of sex work is a hotly contested topic. South Africa currently criminalizes the selling and buying of sex, but policy reform has been on the cards since the SALRC launched its project on the topic in the early 2000s. As most sex work policy responses are grounded in feminist theory, the article analyses the main theoretical ideologies and questions the influence of these ideologies in structuring sex work law reform in the South African context. The author calls for a more inclusive understanding of feminism and sex work, and the need to acknowledge the importance of rights discourse in furthering political growth and protecting sex workers’ constitutional rights.

THE OFFENCE OF BEING FOUND IN DISGUISE IN SUSPICIOUS CIRCUMSTANCES

The statutory criminal prohibition on the use of disguises in suspicious circumstances has a venerable history in South African law. A form of this offence can be found in the pre-Union legislation (as well as in s 9(2) of Proclamation 27 of 1920 and s 3(2) of Proclamation 5 of 1937 of the former South West Africa). It is noteworthy that there are very few reported cases dealing with the various forms of this offence. Nevertheless it is evident that the offence serves an important function. In its review of various statutes relating to justice, the South African Law Reform Commission comments, in respect of the current formulation of this offence found in section 1 of the Prohibition of Disguises Act (16 of 1969), that “it enables police officers to approach persons in suspicious circumstances, which could prevent crime occurring, for example, masked persons outside a bank”, and consequently it is recommended by the SALRC that the offence should therefore be retained.

HUNG OUT TO DRY? ATTORNEY-CLIENT CONFIDENTIALITY AND THE REPORTING DUTIES IMPOSED BY THE FINANCIAL INTELLIGENCE CENTRE ACT 38 OF 2001

According to the South African Law Reform Commission, money laundering is the manipulation of illegally acquired wealth in order to obscure its true source or nature. This is achieved by performing a series of transactions with the proceeds of criminal activities that, if successful, will leave the illegally derived proceeds appearing as a product of legitimate transactions or investments. Professional money laundering assists and strengthens organised crime and may contribute to the undermining of the civil society and the financial system of a country. Attorneys as professionals are no doubt in a precarious position. On the one hand there is the duty to keep in confidence private information pertaining to clients’ affairs which is no doubt essential to the attorney-client relationship and on the other hand there is the duty to the community to uphold the ethics of the profession. Attorneys may find that they are caught between these seemingly conflicting duties and the question is which duty is more important. This article weighs the newly-imposed duties on the legal profession pertaining to money laundering against the equally important principle of attorney-client privilege and asks whether it is possible to reconcile anti-money laundering obligations with legal professional privilege. The article considers the latter duty in light of the ethics of the legal profession in South Africa and the foundation of legal professional conduct. In addition, the position in the United Kingdom and in Canada is also considered. Against this background it is argued that there is no need to regulate the South African professional legal industry any further. Until FICA’s reporting provisions are formally challenged in the Constitutional Court, attorneys will continue to remain uncertain as totheir position, notwithstanding the fact that guidance notes have been issued to aid attorneys in this regard. In order to comply with FICA and simultaneously preserve the attorney-client relationship, attorneys need to educate clients on the provisions of FICA. Furthermore, legal practitioners should have a sound legal knowledge of FICA in order help the State combat organised crime and laundering activities. Finally, it is advisable to keep up to date with the latest guidelines which regarding the independence of the profession; possible infringements of the fundamental right to privacy and potential threats to the confidential attorney-client relationship. It is the awareness of this precarious balance that will ensure compliance with the FICA without causing the attorneys’ profession to lose its credibility.

Comment on the Single Marriage Statute: Implications for Customary Marriages

The South African Law Reform Commission is currently canvassing views on a potential single marriage statute that would reconcile the several enactments currently regulating marriage in South Africa. This comment considers the implications of the proposed Bill for the regulation of customary marriages. It argues that the definition of a marriage / life partnership may be under-inclusive and must be expanded to included polygamous – rather than polygynous – relationships without a religious or cultural basis and life partnerships where the partners are not cohabitants. Furthermore, while the Bill is commended for requiring a husband to obtain the consent of existing wives before he enters into a further customary marriage, the Bill must give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.

The European Union’s General Data Protection Regulation (GDPR) and its Implications for South African Data Privacy Law: An Evaluation of Selected ‘Content Principles’

After a lengthy legislative process, South Africa implemented the Protection of Personal Information Act 4 of 2013 (POPI Act) on 1 July 2020. The POPI Act is an omnibus data-protection Act that conforms to the former benchmark for data-protection laws worldwide, namely, the 1995 EU Data Protection Directive. At the time of drafting the proposed Bill that would later become the Act, the South African Law Reform Commission emphasised the importance of a South African data-protection Act that complies with international standards on data protection, especially with the EU’s Directive. The Directive, in Article 25, imposed a prohibition on the transfer of personal data to non-member countries that do not ensure an adequate level of protection when personal data of their citizens are processed. South Africa’s Act needed to comply with the standard set in the Directive for the protection of personal information if South Africa wanted to remain part of the international information technology market. In 2016, the EU adopted the General Data Protection Regulation (GDPR) that replaced the 1995 Directive with effect from May 2018. The question now arises whether the South African Act still meets the minimum standards for data protection set out by this Regulation and whether amendments to the Act are needed. This article compares certain provisions of the GDPR with similar provisions of the POPI Act in order to establish whether the South African Act meets the standard set in the GDPR.

Targets of Hate, Shame or Exploitation?: The (Violent) Conundrum of Sex Work in Democratic South Africa

Whorephobia is the fear or hatred of sex workers. Whorephobia manifests in various ways in official legislation, popular consciousness, the medical literature, law enforcement and public responses to sex work. All aspects of sex work are fully criminalised following its origins in archaic colonial law. International and local literature has documented how the criminal law on adult, consensual sex work renders sex workers vulnerable to murder, rape, exploitation and other forms of violence, while increasing their risk of HIV and other forms of ill health. This vulnerability impacts directly on public health, while making society less safe. Deeply worryingly, recent recommendations from the South African Law Reform Commission (2017) urged the Department of Justice to maintain this status quo. This article explores whorephobia in the South African context through two case studies of violence in Cape Town in 2013: the high-profile criminal case of the artist Zwelethu Mthethwa who kicked sex worker Nokuphila Kumalo to death, and Tim Osrin's assault of domestic worker Cynthia Joni. The analysis provides a critique of the power structures created by the criminal law and draws on the theoretical framework of stigma-mitigating strategies within sex work developed by Weitzer. We conclude by arguing that the criminal law supports the radical dehumanisation of sex workers which contributes to manifestations of extreme hatred in the form of hate crimes and torture.

The Important Role of the Enduring Power of Attorney and Supported Decision-Making Structures in Reconceptualising the Right of Elderly South Africans with Dementia to Exercise Their Legal Capacity and Avoid Double Discrimination Based on Age and Disability

Older people with dementia encounter challenges with both the physiological symptoms of old age and the interwoven symptoms of dementia, resulting in double discrimination based on disability and age that is unique to them. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities rejects all forms of substituted decision-making and recognises the right to universal legal capacity for persons regardless of age or disability. South Africa’s laws on legal capacity are embedded in the inflexible and uncodified common law curatorship system, of which the main users are older persons with dementia. This group is particularly vulnerable to exploitation by the very people who are legally entrusted to ensure their welfare. The attempts at proposed reform by the South African Law Reform Commission, although a welcomed departure, is still embedded in the substituted decision-making model. The essay proposes to emphasise the unique situation of older persons with dementia who require adequate protection of their constitutional rights to equality and dignity. Furthermore, the essay will challenge the existing laws in light of the urgent need for law reform to ensure that will and preferences of this group is recognised in line with the country’s international obligations.

Prescription of Debt in the Consumer-Credit Industry

A person may acquire rights or be released from obligations through the passage of time. This is known as prescription. The objective of prescription is to achieve legal certainty and finality in the relationship between a debtor and a creditor, with the focus on protecting a debtor (consumer) against the unfairness of having to defend old claims. Old claims are therefore after the elapsing of specific time periods extinguished through prescription. A debtor must then specifically raise prescription as a defence against claims from creditors based on prescribed debts. The prescription of consumer debts is regulated by the National Credit Act 34 of 2005 (when the credit agreement falls under the NCA) and the Prescription Act 68 of 1969. The Prescription Act generally regulates all aspects of the prescription, which would also include consumer debts, while section 126B of the National Credit Act regulates and prohibits certain practices related to prescription, such as the selling of prescribed consumer debts or the continued collection or re-activation of prescribed consumer debts. In this article several practical aspects related to prescription and the National Credit Act are discussed, such as the impact of non-compliance with section 96 and section 129(1)(a) of the NCA on prescription. Section 126B is specifically analysed, and the question whether section 126B absolutely prohibits certain abusive practices related to the prescription of consumer debts is answered. Several shortcomings of the current legislation are also pointed out. In this article some aspects of the draft Prescription Bill proposed by the South African Law Reform Commission are also considered. In particular, we focus on the impact the Bill may have on the consumer-credit industry.
 

A critical evaluation of the prohibition on the South African prosecuting authority to appeal against decisions on questions of fact

Following the common law tradition in respect of criminal procedure, South African legislation does not allow the National Prosecuting Authority of South Africa (hereafter referred to as “the State”) to appeal on a question of fact decided in favour of an accused person. This is the case even in the event of a material factual error. The State increasingly makes use of its limited statutorily conferred right to lodge appeals in criminal cases. As a result, the distinction between questions of fact and questions of law has received considerable attention by the superior courts of South Africa in the last decade. One of the many cases wherein considerable time was spent on dealing with the distinction between a question of fact and a question of law, was the widely reported appeal by the State against the conviction of the athlete Oscar Pistorius on a charge of culpable homicide. This contribution summarises the manner in which the South African judiciary has dealt with the juridical distinction between a question of fact and a question of law. It further examines the arguments advanced for limiting the powers of the State to appeal, as well as arguments in favour of extending the State broader appeal rights. Some of the author’s conclusions are that the right to a fair trial also extends to the State representing the community and as such the right to full appeals by the State ought to be allowed. A criminal appeal is not a trial de novo but merely a continuation of the lis between the State and the accused person. As such the State should also have the right to a fair trial until the last court has spoken the last word on the matter. Furthermore, it is pointed out that the historical reasons for denying the State a full right of appeal is not necessarily valid any longer. The South African legislature should make work of ensuring that the recommendations made nearly twenty years ago by the South African Law Commission (now, the South African Law Reform Commission) that the State be granted broader appeal rights.