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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Freedom of the person and the principles of criminal fault
Author:Ramraj, Victor V.ISNI
Year:2002
Periodical:South African Journal on Human Rights
Volume:18
Issue:2
Pages:225-258
Language:English
Geographic term:South Africa
Subjects:constitutions
civil and political rights
criminal law
Abstract:Section 12(1)(a) of the 1996 South African Constitution, which guarantees the right to freedom and security of the person, including the right 'not to be deprived of freedom arbitrarily or without just cause', has been interpreted by the Constitutional Court as comprising both a procedural and a substantive 'due process' component. The substantive component of this right has been understood to permit the Court to scrutinize the fairness of the fault requirements imposed by criminal law and thus clears the way for a constitutional doctrine of criminal fault. This article traces the legal and conceptual development of this approach to freedom of the person in South Africa and warns of three dangers arising from it: 1) that a half-hearted approach risks inadvertently eroding the principled common law approach to criminal fault that the Court seeks to augment and protect; 2) that the tendency to relax constitutional requirements in relation to corporate criminal liability might hinder the development of a general constitutional doctrine of criminal fault; and 3) that even if freedom of the person were to be understood to include a comprehensive doctrine based on a retributive theory of criminal fault, a utilitarian interpretation of the section 36(1) limitation clause may well undermine that doctrine. Notes, ref., sum. [Journal abstract]
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