Faculty of Law
Department of Procedural Law
Selected Highlights from Research Findings
The court had to decide whether a criminal trial was unfair, to the extent of being vitiated, because the person who acted as prosecutor also interrogated the accused in an earlier statutory inquiry. The court held that it was an ad hoc issue of fact and did not compel a universal conclusion of procedural law. The researcher inter alia discussed the test to be applied where it is alleged that the state gained derivative non-evidentiary advantages at the trial due to an earlier inquiry. Central to this discussion is the right against self-incrimination. The researcher warned that the importance of getting at the truth in any proceedings must remain subservient to the protection of fundamental rights, otherwise our justice system is on the slippery slope towards the creation of a police state.
Contact person: Prof WP de Villiers.
This research addresses two potential obstacles to the recognition of a journalist-confidential source privilege in South Africa. In the first instance, it evaluates concerns that source protection would amount to “press exceptionalism” (the notion that the media should receive legal protection superior to that permitted to the individual). Secondly, it considers the difficulties posed by the establishment of criteria for distinguishing a “journalist” from any other citizen. The research suggests that neither of these are insurmountable obstacles to the protection of journalists’ sources and that the underlying values served by source protection should be carefully scrutinised. Such an approach would ensure that media sources are only protected to the extent that the protection amplifies those values serving democracy.
Contact person: Ms ED Illsley.
In administering a bankrupt estate, the insolvency representative will examine possible voidable transactions in which the debtor was involved before the onset of bankruptcy to ascertain whether any of the debtor’s property or assets that should be available for distribution among all creditors was disposed of improperly. In the case of a cross-border bankruptcy case, the application of national laws regulating these may differ in many respects. Therefore, they also pose difficult questions in such an instance. This research thus provides a general comparison of the law that regulates transactions entered into prior to bankruptcy in a number of jurisdictions and makes some proposals with a view to dealing with these issues.
Contact person: Prof A Boraine.
This research considers the impact of the debt relief remedies in the National Credit Act of 2005 (the NCA) on Insolvency Law in view of a recent judgement in Ex parte Ford [2009] JOL 23412 (WCC) where the court refused an application for voluntary surrender in view of the fact that the debtor did not first apply for debt review in terms of the NCA. It attempts to provide possible solutions as to what extent courts must, in insolvency proceedings, consider the concepts of over-indebtedness and reckless credit and related debt relief remedies when considering applications for voluntary surrender or compulsory sequestration.
Contact person: Prof A Boraine.
In S v Maluleke 2008 1 SACR 49 (T), it was proposed that South Africa should consider indigenous law for alternative sentencing options, particularly where there is a need to involve the community in the healing of the victims’ hurts, in the rehabilitation of offenders and in the reconciliation with those they wronged and with society at large. The court highlighted similar success in Australia. This research investigates the nature of African indigenous law, the role of an apology during criminal cases, the symbioses between indigenous law and restorative justice, and finally, the desirability of the court’s proposal regarding the revival of indigenous sentencing options. The researchers found that, instead of indigenous law, per se, it is rather the values of smaller, traditional communities that Australian courts (successfully) implement. It goes hand in hand with respect for the wisdom of “elders”. It is recommended that, after proper assessment about the applicability of these values in a particular case, a similar approach may be followed.
Contact person: Prof IA van der Merwe.
|
