OVERREACH OF THE CRIMINAL LAW - LEAD-IN PAPER (FROM CRIME, LAW AND THE COMMUNITY, 1976 - SEE NCJ-51708)

• NCJ Number: 51711
• Author(s): J D VAN DER VYVER
• Date Published: 1976
• Length: 6 pages
• Corporate Author: Juta and Co, Ltd
• Publication Format: Document
• Language: English
• Country: South Africa

Annotation

GENERAL BASES FOR THE APPLICATION OF CRIMNAL LAW INDICATED, AND INSTANCES WHERE SOUTH AFRICAN CRIMINAL LAW HAS OVERREACHED ITS SPHERE ARE CITED, PARTICULARLY IN RELATION TO LAWS APPLIED ONLY TO BLACKS.

Abstract

IT IS CONSIDERED THE BASIC FUNCTION OF CRIMINAL LAW TO PROTECT A CITIZEN'S PERSON AND PROPERTY, PRESERVE GOVERNMENTAL PROCESSES, AND PREVENT EXPLOITATION OR CORRUPTION OF THE YOUNG AND HELPLESS. THE CRIMINAL LAW IS CONSIDERED TO BE OVERREACHING ITS INTENDED FUNCTION WHEN IT ACTS AS 'GUARDIAN, PATRON, AND PROTECTOR OF PUBLIC MORALS.' THIS OVERREACH IS NOTED TO BE MOST OBVIOUS IN REGARD TO COMPLAINANTLESS CRIMES. ARREST AND IMPRISONMENT FOR DRUNKENNESS IS CITED AS AN EXAMPLE OF THE OVERREACH OF CRIMINAL LAW IN SOUTH AFRICA (BLACK COMMUNITIES IN SOUTH AFRICA ARE NOTED TO HAVE AMONG THE WORLD'S HIGHEST PRISON POPULATION RATES BECAUSE OF THE DRUNKENNESS LAW). IT IS FURTHER CHARGED THAT IN THE NONECONOMIC SPHERE, THE INFRINGEMENTS OF SOUTH AFRICAN LAW 'UPON THE PRIVATE ENCLAVE OF AN INDIVIDUAL'S DAY-TO-DAY LIFE SURPASS THE RESTRICTIONS UPON CIVIL LIBERTIES OF EVEN THE MOST STRINGENT COMMUNISTIC SYSTEMS.' PRESCRIBING WHOM ONE IS ENTITLED TO MARRY, WITH WHOM ONE MAY HAVE SEXUAL INTERCOURSE, WHAT ONE MAY READ, WHERE ONE IS PERMITTED TO LIVE, WHAT KIND OF EDUCATION ONE MUST RECEIVE, AND WHICH UNIVERSITIES ONE CAN ATTEND ARE CITED AS EXAMPLES OF THESE EXCESSIVE RESTRICTIONS OF THE CRIMINAL LAW. THE SUNDAY NONWORK LAWS OF SOUTH AFRICA ARE SAID TO EXCEED THE FUNCTION OF CRIMINAL LAW BY ENFORCING PARTICULAR RELIGIOUS PRACTICES. IN THE AREA OF HUMAN RELATIONS, THE CRIMINAL LAW IS CONSIDERED TO HAVE OVERREACHED ITS BOUNDS IN SINGLING OUT BANTUS FOR SPECIAL RESTRICTIONS IN INTERACTION WITH WHITES IN URBAN AREAS. THESE LAWS ARE ALSO SAID TO BEAR EVIDENCE OF A VIOLATION OF THE GENERALLY ACCEPTED ARISTOTELIAN PRINCIPLE OF EQUALITY UNDER THE LAW. HOPE IS EXPRESSED THAT REFORM MAY OCCUR. A TABLE ILLUSTRATES ARREST STATISTICS FOR 1972-1973 FOR CERTAIN OFFENSES PERTAINING ONLY BY BANTUS. DISCUSSION FOLLOWING THE PRESENTATION OF THIS PAPER IS SUMMARIZED. (RCB)