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Browsing Public Law by Author "Botha, Rinda"

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    Criminal capacity of and criminal justice for offenders with bipolar disorder
    (University of the Free State, 2023) Bredenkamp, Lucy Scarlett Lessing; Botha, Rinda; Slabbert, Magda
    According to the World Health Organisation, bipolar disorder is the sixth most prevalent disability in the world.¹ Despite this, bipolar disorder remains largely unchartered within the South African juridical landscape. Therefore, the thesis investigates whether sufficient provision is made, both in the context of criminal justice and criminal capacity, for offenders who suffer from bipolar disorder within the South African criminal justice system. In doing so, the criminal justice systems of South Africa, the Netherlands, and the United States of America (USA) are examined, with specific reference to the tests for criminal capacity, relevant legislation, case law, and what constitutes both expert evidence and expert witnesses, respectively. Sentencing options and alternative sentencing options, as they relate to mentally ill offenders, are also examined. Particular consideration is given to terbeschikkingstelling in the Netherlands and mental health courts in the United States. In addition, the advantages and disadvantages of both systems are thoroughly analysed. A proposal for a uniquely South African mental health court model is subsequently put forward, in the hope that this will pave the way in ultimately providing an improved alternative to conventional sentencing for offenders suffering from bipolar disorder.
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    A critical analysis of medical parole in South Africa: a comparative study
    (University of the Free State, 2023) Sease, Karabo; Botha, Rinda
    In the early ages, the word "parole", originating from French, which means "word of honour", related to a promise by a captured soldier upon release not to take arms against his captor.¹ The word parole then later referred to a prisoner's promise not to attempt to escape from prison.² Since 1995, parole has been defined as a system of discretionary release of inmates from prison before finishing the maximum limit of their sentence.³ It is also a system of supervision and reintegration into the community until the end of the sentence.⁴ The philosophy of parole emanates from the view that an offender can serve part of his sentence in the community, which becomes one phase of the treatment process.⁵ Medical parole, sometimes called "compassionate release", is a specific form of parole and allows prisoners to seek early release from prison if they have terminal, other or chronic and age-related health issues.⁶ Medical parole is a correctional policy intended to benefit prisoners with specified health conditions by releasing them to parole before their expected release date.⁷ Different countries have different criteria in place which assist in determining eligibility for medical parole.⁸ In general, the eligibility for medical parole depends on the inmates' inability to perform activities of daily living or needing 24-hour nursing care.⁹ South Africa, like most other countries, has medical parole. The 𝘊𝘰𝘳𝘳𝘦𝘤𝘵𝘪𝘰𝘯𝘢𝘭 𝘚𝘦𝘳𝘷𝘪𝘤𝘦𝘴 𝘈𝘤𝘵 111 of 1998 regulates the release of prisoners on medical parole in South Africa.¹º The amended and current section 79(1) of the Act stipulates: Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if— (a) such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care. (b) the risk of re-offending is low; and (c) there are appropriate arrangements for the inmate's supervision, care and treatment within the community to which the inmate is to be released.¹¹ Despite amendments made, the medical parole system in South Africa still faces criticism. The release of Shabir Shaik, the financial advisor of former President Jacob Zuma, on medical parole after serving only three years of his fifteen years triggered public debate and put the issue of medical parole in the spotlight.¹² The early release of Mr Jacob Zuma has also brought the spotlight on the system and more criticism.¹³ Another issue which raised eyebrows was the fact that according to a study by Albertus,¹⁴ 60 per cent of prisoners released on medical parole did not die after being placed on parole.