123 CURRENT THE ISSUE UCT Law Students’ Newsletter Volume 4, Issue 1 March 2013 Waiting on a Revolution Will Anene Booysen Should we Bail or Not if the Ship’s Going Down? be our Amina Filali or The month of February was a v Joubert; S v Schietekat - is By Thomas Henstra Jyoti Singh Pandey? tumultuous one that shook South whether the interests of Africans to the core. Two justice permit the release of Page 2 tragedies, one befalling a the accused pending trial. teenager from Bredasdorp, the But what does this mean? other a supermodel in Pretoria, enraged and shocked the nation. Well, there are two Changing the The result has been a pitch of competing interests that the public outcry seemingly rare in mechanism of bail serves. our society so jaded by violence On the one hand, the Rules and scandal. Against this accused has his/her rights backdrop we fixated ourselves to personal liberty. These The Legal Practice upon the trial of Oscar Pistorius, are exceptionally important Bill and the Future of and to a somewhat lesser extent rights, especially upon those accused in Anene considering that in the Our Profession Booysen’s case, in a manner the absence of a conviction by fervour of which I have never a court of law, an accused Page 4 experienced before. Intense is constitutionally presumed media scrutiny, headlines, live to be innocent. The law tweets, and live broadcasts all cannot punish those who it fuelled our collective has not found to be guilty. Class schadenfreude. As such, as Mahomed J states in S v Acheson, ‘an Except that these were not trials. accused person cannot be illustrates exactly this tension Actions They were bail hearings. Such kept in detention pending his trial albeit with a smidgen of was the force of our fascination as a form of anticipatory The Case of Silicosis melodrama. But I believe it also with Oscar’s downfall that his bail punishment.’ illustrates the potential danger of Page 6 hearing became the most publicly subjecting the institution of bail to scrutinised in the history of our On the other hand there are the the kind of public pressure that criminal justice system (if you’ll interests of society; for example, we saw with his hearing. Bail is indulge my potential hyperbole). that the accused should stand not a mechanism of crime control. As unavoidable as this situation trial, and that there should be no The It is ill-equipped to respond to is, it is not ideal as the nature and interference with the public pressure in the face of grim purpose of a bail hearing is very administration of justice. If it is crime statistics and the truly Kramers different to that of a trial. likely that an accused will attempt shameful scourge of gender- to evade his/her trial or if it is based violence in this country. It See who won the A bail hearing is considerably less likely that an accused will attempt formal than a trial. Evidence need to destroy evidence or influence is inevitable that these factors Kramerian version might influence judicial policy, but not necessarily comply with the witnesses, then of course the in a rights-based constitutional of the Oscars strict rules of oral or written interests of society are served by democracy justice is not served evidence. But there is a remanding him/her in custody Page 10 when we let the mechanism of fundamental difference between until a conviction or acquittal is bail quench the public’s thirst for the objective of bail proceedings reached. vengeance. That interest is and that of trials. In a bail served through sentencing upon application the enquiry is not The interests of justice are Where To really concerned with the served when these two criminal conviction; it should not bleed into the enquiry regarding question of guilt. That is for the competing interests are the award of bail. trial court to decide. Yet, balanced. This is neatly Work ironically, this is exactly what the contained in s 35(1)(f) of the The horrific degree of violence in public wants to know—perhaps Constitution: ‘Everyone who is A follow-up with South African society may appear the only thing the public wants to arrested for allegedly committing to be sinking the ship that is [the Muhammad Ebrahim know. What the court is trying to an offence has the right to be credibility of] our criminal justice ascertain in a bail hearing—and released from detention if the on doing articles at system, but I submit that in spite this is made clear by s 60 of the interests of justice permit, subject of this, or rather, because of this, Criminal Procedure Act as well as to reasonable conditions’. ENS it would be the wrong thing to do by the Constitutional Court in S v to stop bailing. AS Page 11 Dlamini; S v Dladla and Others; S The case of Oscar Pistorius Quidquid latine dictum sit, altum sonatur 123 Waiting on a Revolution Will Anene Booysen be Our Amina Filali or Jyoti Singh Pandey? By Belinda Hlatshwayo & Farai Chikwanha condemned Anene’s rape and murder in a statement issued on the 13th of February. In the statement, an alarming statistic was sourced from the South African Medical Research Council: a woman is raped in South Africa every four minutes. As disturbing a fact as that is, much more unnerving is the fact that the majority of rapes go unreported. In the Constitution are entrenched our inherent rights to human dignity, freedom of movement, life and, freedom and security of the person. Anene has not been the only person to be denied these rights, but the memory of her especially horrifying experience has galvanized the population. Strong censure followed her death, taking the form of petitions, vigils and marches, such as UCT’s very own “We Say Enough!” protest march on the 20th of February, calling on the government to take a stronger stance against violent crimes. Even within the legislature, opposition leader Lindiwe Mazibuko called for parliamentary debates Rape: A crime most heinous because of this is the prevailing attitude within large and hearings. Dumisani Rebombo, who its invasive nature. The mere idea of pockets of South African society that raped a girl when he was 15, but went on rape, however, is not accorded the same sexual violence is not something to be to become a gender equality activist was amount of repugnance. Students have regarded with the levels of revulsion quoted in The Guardian (UK) saying, “We sometimes remarked, as we stumbled out required by human decency. With the don’t need a debate, we need action... We of lecture theatres after a particularly alarmingly high prevalence of sexual need education.” At this point, the unpleasant exam, “Well, that was a mind offences throughout the country, it is clear question is begged: will public censure rape.” On television, comedians or that the issue is far direr than we are have enough sway on the legislature and programme script writers who don’t care willing to, or perhaps even capable of, the executive to initiate the enactment of much for political correctness will insert a appreciating. legislation and creation of policies which rape joke into their acts or particular will ensure, if not an end to such episodes. Rape describes a horror that On the 2nd of February, 2013, Anene malefactions, at least a decline in the most people cannot fathom and will Booysen was found after she’d been number of occurrences? hopefully never have to experience. raped, mutilated and left for dead. She Unfortunately, it has become quite died later on that day. President Zuma Before January 2013, according to Article normalized and the word is used so described the crime as “shocking, cruel 475 of the Moroccan Penal Code, the flippantly that the sheer horror of the and most inhumane.” The United Nations “kidnapper” of a minor had the option of crime is oftentimes overlooked. Added to marrying his victim in order to escape prosecution, the aim of such a provision being the preservation of the honour of the woman’s family. In March, 2012, 16 year- old Amina Filali chose death over spending the rest of her life with her rapist. Her suicide resulted in mass hysteria, online petitions and protests. Activists increased pressure on the government to repeal the law. In January, 2013, it was reported that this provision of the penal code would be removed. The invalidation of a law that was, in actual fact, rarely used was still welcomed by women’s rights groups. In India, the Criminal Law (Amendment) Ordinance was passed on the 3rd of February, 2013 in response to protests, Page Page which unfortunately turned violent, that occurred after the brutal gang rape of Jyoti Singh Pandey in December, 2012. She 2 died 13 days after the attack, having sustained horrific injuries. A report had been submitted by a judicial committee 412 headed by the Chief Justice of India indicating that failures on the part of the police and the government were the main cause behind THOUGHTS FROM THE violence against women. The ordinance gave effect to many of the recommendations in the report, including the changing of “rape” to “sexual assault”, broadening its legal definition to include other forms of penetration, regardless EDITOR of their extent, and the introduction of an aspect of gender neutrality. Why We Write By Kwadwo Ofori Owusu In South Africa, the 2007 Sexual Offences Act, enacted in response to the Constitutional As law students we read—we read a Court’s decision in S v Masiya changed the lot.