Comparative law and justice/South Africa

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Flag of South Africa
Flag of South Africa


Brief History[edit]

The first modern humans residing in South Africa date back to over 100,000 years. The two groups which inhabited the southern tip of Africa were the hunter-gather San and the pastoral Khoekhoe people[1]. The Dutch founded Cape Town in 1652 as a check point for the spice route between the Netherlands and the East.[2] With the arrival of the European settlers came new diseases and warfare, completely eliminating the Khoekhoe people[3]. In 1806 Britain seized the Cape of Good Hope.[4] Anger rose for the native inhabitants when the discovery of diamonds in 1867 and gold in 1886 brought upon new wealth and immigration.[5] The Boer War broke out in 1899 with the outcome of a shared political party between the Boers and British called The Union of South Africa.[6] In 1948 there was an election by the National Party to create a separate development between the races[7]. The National Party invented apartheid as a means ensure white domination and increase racial seperation[8]. In the 1960's South Africa initiated "Grand Apartheid," which stressed on territorial divisions and police repressions[9]. These race laws prohibited intermarriage between races and prevented non-whites from designated jobs[10]. The Bantu Authorities issued all citizens to a specific "homeland" based on origin[11]. Four of these homelands were created between 1976 and 1981, denationalizing nine million South Africans and making them aliens in their own country[12]. The Public Safety Act and Criminal Law Amendment Act were passed in 1953 which gave the white leaders the right to fine, imprison, or whip any civilian protesting against or supporting the repeal of a law[13]. In 1994 the African National Congress brought an end to separate development between the races.[14] In September 2008, following resignation of President Thabo MBEKI, massive fighting between natives broke out. The leader of the party is now the General Secretary, Kgalema MOTLANTHE, and will be in office until the next election.[15].

Location of South Africa
Location of South Africa

Basic Information[edit]

South Africa is located at the southernmost tip of Africa and is approximately twice the size of Texas. With a landmass of 1,214,470 sq km South Africa ranks in at the world's 32nd largest country.[16] The country includes the Prince Edward Islands and borders Botswana, Lesotho, Mozambique, Namibia, Swaziland, and Zimbabwe.[17] On the southeastern side of the country is the Indian Ocean and on the southwestern side lies the Atlantic Ocean. South Africa has three capitals: Cape Town, Bloemfontein, and Pretoria. The climate of South Africa is semiarid and subtropical on the east coast with hot days and cool nights.[18] The country is a relatively flat plateau with rugged hills and a narrow coastal plain.[19] South Africa has two major rivers: the Limpopo River and the Orange River. The key mountain ranges in South Africa are the Drakensberg Mountains.

In July 2009 South Africa had a population of 49,052,289 making it the 25th most populated country.[20] The total population has 0.99 males for every female; 28.9% are under the age of 15, while 5.4% are over the age of 65.[21] South Africa has never had an official religion but the 2001 census reported that 11.1% of the population was Zion Christian, 8.2% Pentecostal/Charismatic, 7.1% Catholic, 6.8% Methodist, 6.7% Dutch Reformed, 3.8% Anglican, 1.5% Muslim, 36% other Christian, 2.3% other, 1.4% unspecified, and 15.1% none.[22] Also according to the 2001 census the population consists of 79% black African, 9.6% white, 8.9% colored, and 2.5% Indian/Asian.[23] South Africa has 11 official languages: Afrikaans, Ndebele, Northern Sotho, Southern Sotho, Swati, Tsonga, Tswana, Venda, Xhosa, Zulu, and English.[24] The language distribution is relatively dispersed with 23.8% of the country speaking IsiZulu, IsiXhosa 17.6%, Afrikaans 13.3%, Sepedi 9.4%, English 8.2%, Setswana 8.2%, Sesotho 7.9%, Xitsonga 4.4%, and 7.2% speaking a different language.[25]

Economic Development[edit]

South Africa is a middle-country with a Gross Domestic Product of $491 billion, ranked 26th in the world.[26] The GDP per capita is $10,100 (105th in the world).[27] The South African economy is driven by mining (world's largest producer of platinum, gold, chromium), automobile assembly, metalworking, machinery, textiles, iron and steel, chemicals, fertilizer, foodstuffs, and commercial ship repair.[28] The major exports are gold, diamonds, platinum, other metals and minerals, machinery, and equipment.[29]

Health and Education[edit]

South Africa has an infant mortality rate of 44.42 deaths/1,000 live births making it the 59th highest in the world.[30] Males have a life expectancy of 50 years compared to females with an average life expectancy of 48 years, making the country 209th in the world.[31]The major public health concerns in South Africa are HIV/AIDS, smoking-related diseases, and tuberculosis. South Africa has the world's highest AIDS rate with 11% of the total population being infected[32]. In 2008 there was a total of 5.2 million people living with HIV/AIDS and 250,000 South African died from AIDS [33]. About one in every three females aged 25-29 and almost one in every four males aged 30-34 carry the virus[34]. Over 70,000 babies are born every year affected by HIV transmitted from the mother and is the main factor in the rise of the infant mortality rate[35].

South African School Children
South African School Children.

In 2003, 86.4% of the total population over the age of 15 could read and write.[36] Male literacy rate is 87% while female literacy is 85.7%.[37]

Governance[edit]

South Africa has a republican government that is based on Roman-Dutch law and English common law [38]. Government officials get their positions by being elected by the national assembly [39]. South Africa has a constitution that was put into effect on February 4, 1997 which was created jointly by local citizens, civil society, and political parties[40]. The government is split into the Judicial branch, the Legislative branch, and the Executive branch [41]. The Executive branch consists of the President and his cabinet which serve a five year term [42]. The Legislative branch consists of the National Council of Provinces which consists of 10 members from each of the 9 provinces totaling 90 seats [43]. The Judicial branch consists of the Constitutional court, Supreme Court of Appeals, High Courts, and the Magistrate Courts.During the Apartheid years South Africa rejected all things constitutional, including a role for judicial review. The post-apartheid government has incorporated judicial constitutionalism involving a role for judicial review.[44]

Elections[edit]

South Africa holds elections at the state, national, and local levels with proportional representation making it possible for small affiliates to hold office. South Africa's parliament is split into the National Assembly and the National Council of Provinces, whom are responsible for electing the president. The National Assembly has 400 members while the National Council of Provinces has 90 members, each serving a five year term. National, state, and local elections are all held on general election days. In the last election only 56% of all eligable voters cast their vote[45]. Anyone that is over 18 years old, registered, a South African citizen, and has a valid bar-coded identity document or a valid temporary identity certificate is able to vote[46]. Section 19 in the South African Constitution states that 'Every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret and to stand for public office and, if elected, to hold office'.

Courts and Criminal Law[edit]

The judges' table in a courtroom of the Constitutional Court of South Africa at Constitution Hill, Braamfontein, Johannesburg.
The judges' table in a courtroom of the Constitutional Court of South Africa at Constitution Hill, Braamfontein, Johannesburg..

Before South Africa created its first democratic constitution it had two courts: the Supreme Court and the Appellate Division[47]. In 1994 a new system was established entitled the Constitutional Court, which is South Africa's highest court. The first President of the Constitutional Court, Arthur Chaskalson, was appointed by President Mandela and the current chief justice[48]. There are a total of nine judges in the Constitutional Court, each serving a non-renewable term of seven years which was later extended to a term of 12-15 years depending on the age of the judge[49]. The Constitutional Court has the final say in all matters involving the constitution and its decisions are binding[50]. The Supreme Court of Appeal involves all appeal cases except those involving the constitution[51]. The High Court of South Africa handles civil cases which involve more than R100,000 and serious criminal cases[52]. The High Court primarily deals with cases involving a person's status and are defined by the geographical areas in which they reside[53]. The lowest level of court in South Africa is defined as the Magistrate Court, which has more than 400 courts divided regionally and districtly[54]. Magistrate Court deals with cases involving less than R100,000 with most criminal cases being solved in a High Court[55]. South Africa also has specialist courts including Circuit Courts, Special Income Tax Courts, Labour Courts and Labour Appeal Courts, Divorce Courts, Land Claims Courts, The Water Tribunal, Truth and Reconciliation Commission, Small Claims Courts[56]. In the South African court system there is no law that allows the accused to remain silent. The accused has the right to ask for bail, the right to have a trial within 48 hours, subpoena witnesses, the right to legal representation, and the right to question any witnesses[57]. The South African court systems have an adversarial trial with some inquisitorial traits. This is shown in the plea bargaining stage and is shown in the motto of the court that the decision "should not descend into the arena and have its vision clouded by the dust of the conflict"[58]. In South Africa there is a presumption of innocence until proven guilty. On paper the courts adhere to both the prosecutor and the accused to understand the full truth of the disagreement. Due to the lack of funding for the courts, the accused are expected to pay their fines out of pocket.

Legal Personnel[edit]

G6 howitzer at the South African Military Museum
G6 howitzer at the South African Military Museum.

The most important actors in the Constitutional Court are the eleven judges. To be appointed as a judge one must not be a member of any political organization to ensure justice in the courts[59]. The commission nominates and holds public interviews to screen the candidates and the President makes the final decision[60]. In the lower courts the Judicial officers are called 'magistrates' and must hold a law degree or have passed the Civil Service Higher examinations[61]. Additional key actors in court are the accused, the prosecutor, and the lawyer. In court the prosecutor has the right to trial against the accused, who has the right to a lawyer[62]. South African lawyers must serve articles for at least two years under an experienced attorney and attend law school to understand theoretical concepts[63]. South Africa does not have a jury due to the deep racism that still exists from apartheid and lack of funding in the legal department[64]

Law Enforcement[edit]

South Africa possesses a centralized single police structure with a national police force (SAP) and a single municipal police force in Durban[65]. The ten homelands and the SAP account for the eleven policing agencies, each with their own uniform, rank structures, and conditions of service[66]. The eleven policing agencies consist of Transkei, Bophuthatswana, Venda, Ciskei, Gazankulu, Kangwane, Kwandebele, Kwazulu, Lebowa, Qwaqwa, and the old South Africa (SAP)[67]. The SAP rank system has Non-commissioned Officers and Commissioned Officers[68]. The Commissioned Officers consist of a National Commissioner with a deputy followed by Provincial Commissioners with assistants each with a Director, Senior Superintendent, Superintendent, and Captain[69]. The Non-commissioned Officers consist of a Inspector, Sergeant, Constable, and Student Constable[70]. Law officers must complete a long basic training in order to become an appointed police official on salary. Trainees must go through a six-month long basic training and tactical policing program, followed by a twelve-week long field training as a student constable in uniform, followed by a year of in-service training, and then work in the police service for four years[71]. Out of 153 countries being surveyed on corruption rates, South Africa ranked in at 51st[72]. On a scale of 0 through 10, with 0 being most corrupt, South Africa received a 4.6 rating by the Corruption Perception Index[73]. The role of the military in South Africa is to defend the country in a time of war, prevent or suppress terrorism and internal disorder, and to preserve life, health, or property and maintenance of essential services[74]. The country follows the Quasi-Military Police Model in which the SAP and the military work in conjunction to help patrol internal violence. South African National Defense Force (SANDF) branches into the Army, Navy, Air Force, and Military Health Service.

Street art in South Africa, warning against AIDS and abuse
Street art in South Africa, warning against AIDS and abuse.

Crime Rates and Public Opinion[edit]

The most common types of crimes in South Africa are murder, theft, rape, and drug offenses. In 1992 the Annual Report of the Commissioner of Police there were 16,067 counts of murder, 78,677 counts of reported robbery, and 24,360 counts of rape.[75] The number of reported rapes range from one in every two to one in every twenty.[76] The statistics suggest that a large portion of rapes go without being reported and alter the accuracy of the rate of crime.[77] In 1992 there were 20,071 people were arrested for connections with the drug trade.[78] In comparison to other countries South Africa ranks first in gun violence per 100,000, murders, and murders with firearms and ranks second in assaults, kidnappings, rape, and prisoners[79]

Meeting for Rape Victims Rape victims who have been successfully reintegrated into their communities assemble in a "peace hut" near Walungu, South Kivu in DRC. USAID-supported health programs have assisted rape victims with counseling, training, employment, and safe living environments.
Meeting for Rape Victims Rape victims who have been successfully reintegrated into their communities assemble in a "peace hut" near Walungu, South Kivu in DRC. USAID-supported health programs have assisted rape victims with counseling, training, employment, and safe living environments.

There has been an increase in the rate of crime since the death penalty was abolished in 1995.[80]Statistics show that one in every three females have been raped and 90% were first raped as a teenager.[81] Due to the high crime rate in South Africa the desire to live in a gated community has increased. Many South Africans feel as though the government is ignoring the increasing rate of crime and supporting toll roads and new licensing systems.[82] The citizens believe that the actual problem is not in the arrest of the criminal, but in the legal acts that follow.[83] Most of South Africa exhibits common law.

Punishment[edit]

 Nelson Mandela's prison cell on Robben Island.
Nelson Mandela's prison cell on Robben Island.

Currently South African prisons contain 163,479 inmates at an overcrowded rate of 142.32% with about 393 prisoners per 100,000[84]. Of the 163,479 inmates 3,565 are adult females and 58,271 of the inmates are children under the age of 25[85]. There is much violence in the prisons against guards and other prisoners, many ending in fatalities[86]. South Africa has many prisons, each varying in physical condition. The cells range from clean single rooms to unsanitary with up to 42 people in each cell. Prisoners awaiting trial sleep in small damp and cold rooms, have dirty toilets and blankets, chipped tiles, and unpainted walls.[87] The maximum security prisoners include those who have committed murder, serious economic offenses, or those who are serving for multiple crimes. Some prisoners in maximum security are allowed to attend school, play soccer, and work;However most of the prisoners in this department are allowed nothing.[88] The justification for punishment in South Africa is 'warehousing,' a purpose of punishment in which the goal is to isolate the prisoners completely from the outside world and has no type of rehabilitation or post-release program. Due to South Africa's deep apartheid roots there is still much segregation in the prisons. Blacks make up the highest percentage of prisoners with 129,594 incarcerated, followed by 28,971 Coloured inmates, 2,725 Whites, and 763 Asian.[89]Due to the overcrowding of the prisons, there is a periodic 'special remissions' stage in which prisoners are released before their parole date. The minimum sentence for a rape charge is 10-25 years depending on whether it is the perpetrator's first offense. The South African law has a minimum life sentence for cases involving gang rape, second offenders, and those cases in which the victim has already been raped previously[90]. The minimum sentence for first degree murder is 15 years imprisonment on the first offense and the minimum for assault ranges from 5-10 years[91]. First offenses for some murder, some terrorism, robbery including hijacking, some drug dealing, firearm offenses, and white collar crimes including corruption has a minimum of 15 years.[92] The only crimes that can be punishable for life involve massive murders, rapes, and terrorism.[93] The determination of the life sentence depends if the act was premeditation, conspiracy, robbery in aggravated circumstances, the victim being a law enforcement officer or witness, or if the act was done under repeated rape or vulnerability of the victim[94]. Court fees are paid by the offender based on the offense category. South Africa has outlawed capital punishment but permits corporal punishment in schools and allows caning on adults[95].

Rights[edit]

Family Law[edit]

 Protest  and Celebration is a history of South Africa’s gay pride marches and parades over the last 16 years.
Protest and Celebration is a history of South Africa’s gay pride marches and parades over the last 16 years.

In order to obtain a customary marriage both spouses must be over the age of 18, must consent to each other to be married under customary law, and must not be blood related[96]. If the prospective spouses are under the age of 18 they must obtain consent from a parent, guardian, commissioner of child welfare, judge, or minister[97]. A South African married under customary law can have the marriage be dissolved if the court agrees that the relationship "has reached such a state that there is no reasonable prospect of the restoration of a normal marriage relationship between them"[98]. South Africa allows same-sex couples to "enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex marriage"[99]. The rights to a child may be given up by choice or by force under circumstances in which they harm the child's safety, protection, welfare, or well-being[100]. The child may be placed in a drop-in center, foster home, youth center, or be put up for adoption. There are many laws which determine the outcome of a deceased persons' property. If the spouse is not mentioned in the will the Maintenance of Surviving Spouses Act allows the surviving spouse to claim the property only until remarriage or death. If there is no will the property is divided up equally between the remaining children and spouse. If there is no surviving spouse or children the property is divided equally among parents and siblings, or the next closest blood relative. The property must be claimed within 30 years or is forfeited to the state[101]. There are three ways in which a person may obtain citizenship as a South African. It can obtained by birth, descent, or naturalization. The first two criteria must be documented but to be naturalized is not a legal right and may be denied by the Magistrate.[102] If the individual was born post-1995 then it must be proved that at least one of the parents was a South African or a permanent resident at the time of birth[103]. The courts make decisions that revolve around families and children. Since the Bill of Rights was passed women have received formal rights as equal citizens.

Human Rights and Social Inequality[edit]

Every South African has the legal right to a basic education, adequate housing, basic nutrition, sufficient food and water, health care, and social security[104] Section 9 of the South African Constitution reads that "The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."[105] Although the Constitution declares all citizens as 'equals,' women and blacks are still suffering under apartheid rule. One case involved a group of white students at the University of the Free State in which they dispersed on campus footage of them urinating into food that four black laborers employed by the university had to eat[106].Women still make up a large percentage of the unemployed and those who are employed are majorly employed by the lower paid jobs.[107] Blacks are still suffering under racism, with many cases being forgotten about in courts. Women are more affected by poverty and are infected with AIDS at a rate twice as high as men, making it much more difficult for women living in poor rural communities to receive adequate healthcare. [108]

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