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South Africa's Criminal Justice System - Research Paper Example

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South Africa’s Criminal Justice System Name Institution South Africa’s Criminal Justice System South Africa experiences some of the highest rates of crime in the world and thus brings sharp focus on the structures and dynamics of the nation’s criminal justice system…
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South Africas Criminal Justice System
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Download file to see previous pages After this, the study discusses the positives and shortcomings of the South African criminal justice system. A contrast of South Africa’s legal system with the US criminal justice system then precedes the conclusion to the study. The Characteristics of the South African Criminal Justice System At the general level, South Africa has a hybrid criminal justice system, promoting legal pluralism as the country’s legal system developed. According to Mireku (2010), common law in South Africa comprises of a mixture of Dutch-Roman variant of civil law and English common law. The Roman-Dutch influences are traced from the 17th century colonization of South Africa by Holland, while the English influence results from English settlers later in the country’s historical account. The Roman-Dutch aspect of South African criminal law concerns the private law subjects including contractual agreements and family law as well as criminal law. Meanwhile, the English aspect involves the law of evidence and a number of other subjects in public law. Besides the two, South Africa also incorporates customary law within its legal system. Customary law is used where applicable and subject to the Constitution, especially operating in traditional/rural communities. Such communities use a combination of customary, civil/common law to regulate issues including marital issues and inheritance. Other than this, South African law is not codified and follows a similar pattern to the English system where interpretation is sought based on court decisions/precedents and individual statutes (Schwikkard, 2009). Another aspect of the characteristics of the South African legal system is its upholding constitutional supremacy and Universal Bill of Rights. Whereas the Apartheid regime was constructed on a parliamentary sovereignty, the contemporary South African criminal justice system is a constitutional democracy. This is underpinned through entrenching the Bill of Rights in law and a specialized supreme constitutional court. This court occupies the highest position in the judicial hierarchy and solely deals with constitutional maters and decisions interconnected with the constitution (Mireku, 2010). Substantive law in South Africa stems from the influence of the English legal system. According to Barratt and Snyman (2002), the British maintained the Royal-Dutch legal system instead of formally introducing their substantive law upon establishing colonial influence in South Africa early in the 19th century. However, the British figured that the Roman-Dutch system would not adequately cater for modern society requirements which led to innovative laws based on English Acts and using English precedents for interpretation. English procedural law was adopted, which were observed to influence substantive provisions. Moreover, the superior court judges and advocates received their training in England and, thus, tended towards English treatises. One of the aspects in which substantive law is exhibited is in the Bill of Rights, where 27 substantive provisions are provided for. Such provisions revolve around rights such as the right to life and the right to human dignity. Van der Merwe (2004) discusses procedural law in the South African criminal justice system, stating that it traces its roots to the influence of British occupation of South Africa in the 20th century. The colonial master introduced procedural law in all South African territories through ...Download file to see next pagesRead More
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