Faculty of Law
Department of Procedural Law
Selected Highlights from Research Findings
An examination of the perceptions of the courts with regard to rape, and particularly indecent assault, shows that the courts have very little knowledge of the real nature of the impact of sexual offences upon children. This lack of knowledge plays an important role in the evaluation of victims and contributes to inaccurate grading of the seriousness of offences, based on underlying, incorrect perceptions. It was further found that impact reports were presented in an arbitrary and haphazard manner. These findings thus emphasise the importance of the presentation of impact evidence in all cases of child sexual abuse.
Contact person: Prof IA Van der Merwe.
In a number of decisions various high courts held that a surety may rely on the fact that the main obligation to which the suretyship relates amounts to a voidable disposition in the case of gratuitous dispositions but there seems to be uncertainty in those cases where the disposition amounts to a preference in terms of the relevant sections of the Insolvency Act 24 of 1936. The authors in Hockly’s Insolvency Law (Juta 2002) at p 128 state that "[i]t is not entirely clear whether an order setting aside a disposition always extinguishes the debt between the parties. The issue is important not only for the beneficiary of the disposition, but also for the surety of the debtor, since a surety is discharged if the principal obligation is extinguished for any reason". The researcher analysed this notion, in view of various points of view raised by the courts and other commentators. He then provided a framework on how to deal with this aspect in future by discussing the theoretical basis of the different types of voidable dispositions in insolvency law.
Contact person: Prof A Boraine.
Researchers in the Department of Procedural Law investigated the principle of sustainable development which means that states must ensure that they develop and use their resources in a manner that is sustainable. Such resources include not only the natural environment but also human resources which may be accommodated in three different models of sustainable development: the economic growth-centred model, the environment-centred model and the social well-being-centred model. Focusing on the environment and the small business enterprise the possibility of conflict was investigated against the present legal background. Findings: While there is generally a more sensitive approach to environmental issues the tendency in the context of sustainable development is to effect a balance between conflicting interests in relation to the environment and economic enterprises. However the recommendation is that there should be government assistance in order that small enterprises are able to comply with environmental law.
Contact person: Ms J Church.
Mrs Jacqueline Church and Prof Joan Church undertook a research project to investigate the recognition and application of indigenous law both historically and in the light of the constitutional precepts regarding human rights and the development of law. A comparative analysis of cases suggests the need for a more progressive approach. Analyses of the cases indicated that rather than develop customary law the tendency of the courts is to strike down indigenous institutions as being unconstitutional. A more progressive approach is suggested in accordance with a model highlighted in the research.
Contact person: Ms J Church.
A study of evidence presented during the sentencing process in child sexual abuse cases revealed that victims, especially in the case of boys, often become perpetrators of sexual offences themselves in order to regain a sense of power. In the case of girls, they often end up in other abusive relationships. Despite the fact that there is a new focus on the victim, counselling services to victims are either nonexistent, are offered in an inconsistent way or are not readily accessible. Recent case studies indicate that when the judicial officer is educated via a well prepared victim impact statement about the harm caused by rape/ indecent assault of children, the court has sanctioned counselling. This enabled the behavioural scientist involved to arrange counselling for the child. It was thus found that judicial officers open to therapeutic jurisprudence principles can play a vital role to address victims' harm and contribute to curbing the long-lasting effects of child sexual abuse. Regrettably, this mainly applies to well-resourced urban areas and their role is therefore limited.
Contact person: Prof IA Van der Merwe.
The Victims’ Charter provides the most recent platform for the formal introduction of victim impact statements in court. The underlying rationale for the use of victim impact statements, as well as its contents, opinion as to sentence, the responsibility for it, forms and guidelines and evidentiary aspects were investigated. It was found that the main aim of information regarding the full impact of the crime on the victim is to enable the presiding officer to follow a balanced approach to sentencing and to assist the court in applying the principle of proportionality during that phase of a criminal trial.
Contact person: Prof IA Van der Merwe.
|
