Faculty of Law
Department of Procedural Law
Selected Highlights from Research Findings
In the note ‘Therapeutic Jurisprudence: judicial officers and victims’ welfare – S v M 2007 2 SACR 60 (WLD)' the author examines the principles and practice of the therapeutic jurisprudence perspective (including its relationship to restorative justice) and briefly explores the differences between traditional and therapeutic court procedures and judicial officers, as well as the importance of personal skills. It is argued that, in addition to focusing on the offender’s well-being, there is a need to also recognise and facilitate the therapeutic needs of specific victims. It is illustrated how the court’s unusual approach towards an adolescent victim in the rape case of S v M 2007 (2) SACR 60 WLD sets an example for incorporating therapeutic jurisprudence principles, with regards to victims, into the sentencing court room. An analysis of the judgment of M thus confirms how therapeutic jurisprudence principles (albeit unwittingly in this case) provide an opportunity for judicial officers to do the following: look beyond adjudication (with regards to both offender and victim); do more than to just process a case; acknowledge the profound impact (often anti-therapeutic) the legal process and its outcome may have on all participants’ lives and well-being; develop an ethic of care and humanise the legal process. A therapeutic jurisprudence approach also changes the dynamics of the courtroom, particular in the context of sentencing, inter alia, by requiring more active judicial officers. It is submitted that one reason why the therapeutic jurisprudence ‘lens’ has not been used in an explicit way in South Africa might be that our courts have as guiding principle the concept of ubuntu which underscores the constitutional recognition and furtherance of the dignity and wholeness of all people. However, since 2004, several international jurisdictions have accepted the perspective of therapeutic jurisprudence by either adopting resolutions, developing judicial manuals on the topic or incorporating it into their national curricula for judicial education. This note recommends that the formal recognition of therapeutic jurisprudence in South Africa is considered.
Contact person: Prof IA van der Merwe.
In the article to sequestrate or not to sequestrate in view of the National Credit Act 34 of 2005: a tale of two judgments 2010 PELR the authors consider the impact of the National Credit Act 34 of 2005 (the NCA) on sequestration procedures in terms of the Insolvency Act 24 of 1936 and recent precedents. The impact of debt relief remedies and certain special provisions that apply to debt enforcement in terms of the NCA on sequestration procedures are considered in particular. The authors analyse the legal position and provide guidelines on how the courts should approach certain potential problem areas when apparent opposing provisions of both these acts may find application in a particular case. The Supreme Court of Appeal referred to this research in a recent judgment in ABSA Bank v Naidoo 2010 4 SA 597 (SCA) para 7 fn 12.
Contact person: Prof A Boraine.
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