Waiver of counsel in South African child justice: An autonomous exercise of rights

The Child Justice Act 75 of 2008 created many unique procedural mechanisms for the processing of children in conflict with the law. One such procedure relates to mandatory legal representation, and the appointment of such to assist the court in terms of regulation 48, where the child refuses to co-operate with the appointed representative. This submission is a theoretical evaluation of section 35(3)(f) of the Constitution of the Republic of South Africa, 1996, juxtaposed against section 83 of the Child Justice Act and its associated regulations. It posits that obligatory legal representation is an infringement of a child offender’s constitutional right to choose to be represented, and to select a representative of choice. The submission concedes that the focus of the Act is the protection of child offenders. It, however, argues that the insertion of a legal hearing phase into the current preliminary inquiry stage of the child justice process would be an improved response to rights protection than mandatory representation. The author uses waiver processes applicable in selected American states to demonstrate the suggested alternative. The author concludes that waiver is an issue deserving of attention at the pre-trial stage and that therein a child offender is guaranteed both the protection of the best interest standard and the autonomy to exercise the  constitutional right to choose to be represented at trial

A comparative study of child justice systems: Any lessons for South Africa from The Netherlands?

This submission is a theoretical overview of the adjectival process of child justice in The Netherlands. It offers insight into the criminal procedure of an almost pure inquisitorial system dealing with children in conflict with the law. Unlike the South African methodology, the Dutch approach uses welfare and education as the premise for its criminal actions against child offenders. The author posits that the South African system, especially with her incorporation of an inquisitorial preliminary inquiry in the child justice process, would benefit from the lessons offered in inquisitorial jurisdictions with regard to the implementation of the best interest standard in the process of prosecuting child offenders

Compulsory HIV testing of child sex offenders in the South African criminal justice system

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 established unique procedural mechanisms for the processing of sexual offence cases and for the protection of victims. One such procedure relates to compulsory HIV testing of an alleged offender on application by the victim or a police official. This article is a theoretical exploration of Chapter 5 of the Sexual Offences Act, and the Children’s Act 38 of 2005 as they pertain to HIV testing of children, juxtaposed against the Child Justice Act 75 of 2008. The submission concedes that Chapter 5 of the Sexual Offences Act is applicable to child offenders. The authors, however, argue that child offenders are procedurally sui generis in the criminal justice process and resultantly the prescripts of Chapter 5 of the Sexual Offences Act are at odds with the position of a child offender within the protections of the Child Justice Act, insofar as effective protection of the best interest standard is concerned

Dying to starve: A comparative analysis of legal aspects relating to consent in force-feeding of both minor and adult anorexic patients

The authors explore the legal complexities surrounding the force-feeding of anorexic patients. Due to the myriad of difficulties relating to anorexia nervosa, treatment is intricate. The aim of this exposition is to clarify legal issues of consent and self-determination, with regard to both adult and minor patients. In addition, the distinction between ‘irrational’ and ‘incompetent’ refusal will be discussed, with the authors maintaining that the ‘irrational’ refusal of an adult patient should be respected by the law. To come to an informed conclusion, the authors will first analyse the medical and psychological aspects of anorexia nervosa. Secondly, the South African position as shaped by the Mental Health Care Act, the Children’s Act and the National Health Act will be contrasted with the position in Great Britain in order to determine the international perspective and its contrast, or not, to South African law

Prosecuting “hate”: An overview of problem areas relating to hate crimes and challenges to criminal litigation

Several calls, from a wide spectrum of sectors for the enactment of hate-crime legislation in South Africa, suggest that there is limited knowledge about the theoretical underpinnings of this area of criminal law and of the practical problems associated with the implementation of hate-crime laws. This submission briefly examines the origins of hate-crime laws and attempts, by using existing American sources, to provide a conceptual framework for hate crimes. The different models of hate-crime laws, definitional issues and the controversies associated with hate-crime laws are considered. These controversies include disagreements about the use of the term ‘hate’, the inclusion of victim categories, and the consideration of motive as a requirement of hate crimes. The article also considers practical problems associated with the implementation of hate-crime laws. These problems could commence at the complaint stage when evidence of bias has to be established by law-enforcement officers, and extend to the trial stage, when the role of victims must be considered, when plea bargaining is a possibility and when bias has to be proved in court

Deposit insurance, market discipline and off-balance sheet banking risk of large U.S. commercial banks

The market discipline of off-balance sheet banking activities (OBSA) has been reexamined by employing contingent claims valuation techniques to derive implied asset variances from bank equity and deposit insurance, and from risk-premia for bank subordinated debt. Specifically implied asset variances have been calculated from contingent valuation models and have been regressed over on-balance accounting risk variables and off-balance sheet activities. These implied asset variances are better than equity variance or risk-premia in proxying total risk because they consider both the non-linear nature of contingent claims model and the impact of closure rules. Empirical results document the existence of market discipline of some OBSA. Market participants price these OBSA as risk-reducing. Therefore, regulatory additional capital requirements of such OBS may be inappropriate

The market\u27s evaluation of off-balance sheet banking risk: a methodological reexamination

The empirical literature, to date, has ignored the impact of Off-balance sheet (OBS) banking activities on the default-risk premia borne by bank subordinated debtholders. This paper examines the market discipline of OBS activities by employing a contingent claims pricing model to the default-risk premia on subordinated debt. The standard approach to determine if market prices of subordinated debt reflect the risk of default is to regress the yield spread against accounting measures of bank risk. This approach is inadequate because yield spreads are neither linear nor monotonic functions of bank risk. Moreover, this approach fails to account for the fact that banks are regulated. Observed yields on subordinated bank debt over equivalent maturity treasuries are used to compute implied asset variances. OBS banking activities appear to reduce both linear risk-premia and implied asset variances. These results suggest that bank regulators are overly concerned with the risk exposure of OBS activities. The risk-based capital requirement of OBS banking activities may be inappropriate

The market\u27s evaluation of off-balance sheet banking risk: a methodological reexamination

The empirical literature, to date, has ignored the impact of Off-balance sheet (OBS) banking activities on the default-risk premia borne by bank subordinated debtholders. This paper examines the market discipline of OBS activities by employing a contingent claims pricing model to the default-risk premia on subordinated debt. The standard approach to determine if market prices of subordinated debt reflect the risk of default is to regress the yield spread against accounting measures of bank risk. This approach is inadequate because yield spreads are neither linear nor monotonic functions of bank risk. Moreover, this approach fails to account for the fact that banks are regulated. Observed yields on subordinated bank debt over equivalent maturity treasuries are used to compute implied asset variances. OBS banking activities appear to reduce both linear risk-premia and implied asset variances. These results suggest that bank regulators are overly concerned with the risk exposure of OBS activities. The risk-based capital requirement of OBS banking activities may be inappropriate

A novel member of the transmembrane serine/threonine kinase receptor family is specifically expressed in the gonads and in mesenchymal cells adjacent to the mullerian duct

The activin and TGF-beta type II receptors are members of a separate subfamily of transmembrane receptors with intrinsic protein kinase activity, wh