Category Archives: Justice

I examine criminal justice and I explain some aspects of the English and Welsh legal system. I sometimes argue for more leniency and sometimes for more firmness. It depends on the individual case.

Kaja v Secretary of State for the Home Department 1995

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This is an asylum case

This man fled Zaire. His claim for asylum was thrice rejected. He complained that the adjudicator had been unfair.

”A reasonable degree of likelihood of  persecution if returned”’ was the standard needed to grant asylum as laid down in prior cases.

 Stare decisis

The adjudicator had not referred to a standard of proof. A hearing was needed de novo

There was a misdirection of law

 One must look not just at history but at the possibility of future persecution

Kaja was granted a fresh hearing

Decision makers must take into account evidence of various categories

1. evidence that is certain

2. evidence that is probable

3. evidence that if possible

4. evidence that is false.

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R v Secretary of state for the home department ex parte karanakaran

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A person from Sri Lanka claimed asylum in the United Kingdom

He came to the UK because he feared torture if he remained in Sri Lanka. He was suspected of being concerned in the LTTE.  This was not a Convention reason.

He needed to show his fear of torture was justified by more than a civil standard of proof.

The House of Lords held that in such cases facts are particularly important and trump law.

 

AZAPO v President of the Republic of South Africa.

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The Azanian People;s Organisation

AZAPO sought to overturn the Promotion of National Reconciliation and Unity Act of 1995 unconstitutional.

 The said act gave immunity to persons for any crime committed in the defence of apartheied or aimed at its overthrow.

There was no vicarious liability for such acts either.

 The court upheld the PNAUA because it was needed to bring about an honest account of past actions. People would not speak freely if they feared persecution. Moreover, the constitution itself might not exist  had it not been for this act.

Moseneke v Master of the High Court

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Five members of the Moseneke family moved this action.

 

As the law stood when a white died intestate the will was administered by the Master of the High Court whereas when a black person died intestate the will was administered by a magistrate

It was decided that henceforth the Master of the High Court would administer the estate of black people who died without making a will. This would start with Moseneke.

This part of the Black Administration Act 1927 was severed.

S v Baloyi (Minister for Justice and another Intervening) 2000

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In this case there was  Prevention of Family Violence that was challenged.

 The law was said to be repugnant since it reversed the burden of proof.

It does away with the presumption of innocence and this goes against the constitution

 The difficulty was the state had to reconcile two conflicting imperatives. These were

to prevent domestic violence

 to uphold the rights of those accused of committing the said domestic violence

The court declined to confirm the decision of the Transvaal High Court. Transvaal High Court had said this reversal of the burden of proof was in violation of the constitution.

Pretoria City Council v Walker. 1998

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Walker claimed the way he was bill for electricity was racially discriminatory. The wealthier areas were billed in a more disadvantageous way to the manner in which the poor were billed. The rich were almost all white. The poor were mostly black.

Payment was not enforced in townshipps. The court held that the discrimination was fair since Walker did not belong to a disadvantaged group.

Walker lost his case.

Harksen v Lane NO.

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 This is a South African case. Harksen said the way she was deprived of her estate was discriminatory. Her husband died and her property was sequestered.

Her right to privacy and property were violated. There was an outdated view of marriage which worked to the disadvantage of females.

She is entitled to human dignity.