South African Criminal Law

South African criminal law is not easy to understand for the untrained person. South Africa remains a new democracy where the types of legal rights and the boundaries of those rights are still under negotiation both from above and below. As the years progress since 1994 new cases reveal the problems and gaps with current civil and criminal law and thus the definition of certain crimes are redefined in amendments to legislation. In some cases the purpose of this is simply to remedy small gaps, but in some cases the changes are necessary to ensure compliance with the constitutional understanding of family and personal rights.

A good example of South African criminal law that has changed substantially since 1994 is the Criminal Procedures (Sexual Offences and other Related Matters) act 32 of 2007. A number of civil and criminal cases led the South African judiciary to believe that the definition of rape and other sexual offences did not suit the purpose of ensuring the constitutional provisions for gender equality. The legislation was thoroughly researched by the South African Law Commission and was eventually debated in parliament with the involvement of civil society. Many legal rights were redefined, for example those around rape within a family. It is an incredible testament to hard work, but there remain some gaps which leave many survivors of sexual violence without the support they need.

When it is recognised that the rights to dignity and safety which are constitutional legal rights are not being upheld, a new definition must emerge. This process can be initiated by the judiciary, or by civil society who bring issues to light. At present the latest law that is being debated is the legislation around trafficking. The creation and formation of criminal law is unfortunately made through trial and error, and this is certainly the case in South African criminal law.

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