Browsing by Author "Nel, Mary"

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    Crime as punishment: A legal perspective on vigilantism in South Africa
    (Stellenbosch University, 2016-12) Nel, Mary; Kemp, Gerhard; Buur, Lars; Stellenbosch University. Faculty of Law. Dept. of Public Law
    ENGLISH ABSTRACT : This study aims to remedy a gap in legal literature by addressing the phenomenon of vigilantism from a legal perspective, and seeking to conceptualise and understand the problem. To this end, it first arrives at a working definition of vigilantism for a legal context by critically analysing previous (non-legal) efforts to define vigilantism and identifying and discussing elements of a proposed crime of vigilantism. The focus then shifts to interrogating the relationship between (the erosion of) state legitimacy and vigilante self-help. After demonstrating the usefulness of the concept of legitimacy as an overarching framework for understanding the state-vigilante relationship, three dimensions of legitimacy (legal, normative and demonstrative) are explained and the assumed nexus between (deficient) state legitimacy and vigilantism is clarified. Next, factors precipitating state delegitimation in the criminal justice context are identified so as better to grasp the role of deficient state legitimacy in fostering vigilantism – and concomitantly, how the state might remedy such shortcomings. While it is argued that state delegitimation is by no means the only factor contributing to the emergence and prevalence of vigilantism, a common thread running through many vigilante narratives is that the failure of criminal justice agents to do their job properly opens a law-and-order gap that vigilantes are only too willing to fill with their own brand of “justice”. To appreciate the role played by vigilantes as informal criminal justice “providers”, vigilante counter-legitimation strategies and rituals are then explored. They are compared to those utilised by their formal counterparts, with the aim of better delineating the common ground (or lack thereof) between state-sanctioned criminal justice and vigilantism. Thereafter, various divergent state responses to vigilantism are outlined and critically evaluated, divided into chapters focusing on state relegitimation strategies premised on exclusion (e.g., criminal prosecution) and inclusion (e.g., restorative justice). The emphasis throughout is on how to address vigilantism in such a way as to balance a non-negotiable respect for human rights with the need to respond to pressing community order and security concerns. It is concluded that vigilantes may indeed be willing to abandon violent means of problem-solving sufficiently to legitimate – and work in partnership with – a formal criminal justice system committed to addressing issues of crime and disorder in a community-responsive, inclusive, respectful and restorative manner.
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    Incest : a case study in determining the optimal use of the criminal sanction
    (Stellenbosch : Stellenbosch University, 2003-12) Nel, Mary; Van der Merwe, S. E.; Stellenbosch University. Faculty of Law. Deptment of Public law.
    ENGLISH ABSTRACT: The aim of this study is to determine standards or criteria to be used when deciding on the optimal use of the criminal sanction and to evaluate the efficacy of such criteria by applying them to an existing crime, namely incest. Since criminal punishment necessarily impacts negatively on the human rights of those subject to it, it is submitted that it should only be used as a last resort where it is absolutely necessary to do so. Relevant constitutional provisions and other legal sources are examined and used as the basis for expounding a test for determining the circumstances under which it is appropriate to criminalise. It is argued that the decision to utilise the criminal sanction may be tested against certain guidelines: the state bears the burden of showing, firstly, that the rationale of the crime in question is theoretically justifiable in that criminalisation serves a worthy state purpose; and secondly, that criminalisation is reasonable, being both practically desirable and effective in achieving legitimate state goals in the least restrictive manner possible. In the second part of the thesis, the proposed criteria are applied to the common law crime of incest. An initial discussion of the crime indicates that a wide range of conduct is punishable as incest, including both extremely harmful conduct, such as the rape of a child by her father, and completely innocuous behaviour, for instance private sexual intercourse between consenting adults who are merely related by marriage. Next, an attempt is made to ascertain the true rationale for criminalising incest and then to establish whether such rationale is justifiable. The conclusion is reached that despite there being good grounds for punishing certain manifestations of incest, the only reason for imposing criminal punishment that is valid in all instances, is the unconvincing contention that the state is justified in prohibiting incest merely because incest is regarded as morally abhorrent. And even assuming that targeting and preventing undesirable forms of harmful or offensive conduct is a justifiable purpose of the incest prohibition, it is nevertheless submitted that criminalising incest is unreasonable, since the crime as it is presently formulated is both over- and under-inclusive for the effective realisation of any praiseworthy aims. After testing incest against the criteria developed, the recommendation is made that incest be decriminalised. It is contended that there are sufficient alternative criminal prohibitions available that would adequately punish harmful incestuous conduct without simultaneously unreasonably limiting the rights of consenting adults to choose their sexual (or marriage) partner without state interference. Decriminalisation would not only prevent potential violations of human rights, but the legitimacy of the criminal justice system as a whole would be considerably enhanced if it were apparent that the criminal sanction was reserved for conduct truly deserving of punishment.