HSF briefs

Helen Suzman Foundation | Apr 08, 2015
The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - III
Oct 27, 2015
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Matthew Kruger

In the first two briefs of this series I outlined the fact that, according to the SALC decision, the SAPS has a duty to investigate allegations of crimes against humanity. I explained, however, that in coming to this conclusion, Majiedt AJ said that the NPA has the power to institute criminal proceedings, but does not also have a duty; rather, it just has a discretion. In other words, he thinks that where a power is discretionary, the person vested with that power does not have a duty to exercise it. I concluded the second brief, however, by explaining that the concept of a duty and the concept of a discretion are not mutually exclusive. In this brief, I provide a possible reason for why the court thought otherwise.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind – II
Oct 27, 2015
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Matthew Kruger

In the first brief I explained that the purpose of this series of four briefs is to determine whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes and genocide. I indicated that I think such a duty does exist and that this duty is sourced in the Constitution itself. My explanation of why this duty exists began with an outline of the Constitutional Court’s judgment in the SALC decision, a case dealing with the duty of the SAPS to investigate foreign nationals accused of crimes against humanity, war crimes and genocide. I ended the first brief by claiming that the finding of the court that the NPA has a discretion but not a duty to institute criminal proceedings presents certain problems—especially given the decision by the ANC to withdraw South Africa as a member of the ICC. In this second brief, I will explain the significance of the Constitutional Court’s conclusion and I will begin to interrogate the basis of this conclusion.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - I
Oct 27, 2015
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Matthew Kruger

This is a series of four briefs. In this series I consider whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed genocide, war crimes or crimes against humanity. I conclude that although the NPA has a discretion when exercising its power to institute criminal proceedings, it also has a duty to prosecute alleged perpetrators of such crimes. This duty is grounded in the Constitution, with domestic legislation and international law concretising, particularising and duplicating this duty. This conclusion has important implications for any decision by the NPA not to prosecute alleged perpetrators of such crimes. It also means that South Africa’s membership of the ICC is not critical to the NPA’s duty to prosecute such persons. The arguments that I make in this series include a fair amount of legal and conceptual analysis. As such, the ideal approach to reading this series of briefs would be for the four briefs to be read in a single sitting (or, at least, without much break in between reading each brief). In the likely event that such dedication is not possible, however, I have provided short summaries of the preceding briefs in the second, third and fourth briefs of this series. These three summaries, I hope, will be adequate to remind the reader of the more essential arguments of the preceding briefs.

The rise and fall of Uniform Rule 49(11)
Oct 22, 2015
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Chris Pieters

Uniform Rule 49(11) was used as a method of enforcing court orders while the appeal process was underway. This has been repealed and its empty place is a reminder of how rules can be managed.

Corruption and political party funding: Debating the means to a desirable end
Oct 14, 2015
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Matthew Kruger

Political questions rarely have easy answers. Even when we agree that a particular goal is desirable—end corruption, for example—we often disagree over the appropriate means to that end. Here I consider one possible means by which to combat corruption, namely, the regulation of the disclosure of political party funding, as well as some of the difficulties that accompany its actual use.