1.1. Kind of Research Methodology used?
Basically, researchers conduct a contrast of the accessible literature to detect the required reply or what has been written on a unique subject. Document-based research has to do with the reviewing of sources that are frequently sourced from or discovered in the library. Whenever factor out is made of qualitative research, one ought to be aware that the research documents exceptionally primarily based and vice versa. In doing all this, researchers are in search of to “immerse themselves in the assignment matter” and cultivate state-of-the-art principles that considerably decorate their grasp and clarification of truth. These sources consist of law.
Qualitative research “is a form of research in which researchers make an analysis of what they see, hear and understand”. In general, qualitative research is characterised by way of participatory research, the place a researcher performs a vigorous function in the collection, analysis, and interpretation of statistics. Therefore, qualitative research is a structure of research in which researchers make a comparison of what they see, hear and understand. It is aimed at accumulating statistics about a theme that investigates something about human behaviour that cannot be measured, such as perception, opinions, experiences, and so forth.
1.2. The reason for using such kind of research methodology.
Generally, any form of research is important when one is searching for an answer to a legal problem. In this context, document based-research is important because of the following:
1.2.1. It provides present day solutions to the legal problem being researched.
1.2.2. It gives information about what other scholars have written on the subject.
1.2.3. It indicates whether anyone has written on the subject yet.
1.2.4 It indicates whether the concern being investigated has been absolutely explored and has for this reason turn out to be saturated.
1.2.5. It suggests whether there is a hole in the handy literature that nevertheless wants to be explored.
1.2.6. It shows whether there is a need to habits similarly learn about of the concern.
1.3 The ethical issues considered in conducting the research.
1.3.1. Does the research conform to the principle of informed consent?
If the research consists of minors, people under the age of 21 years, prior consent from parents or legal guardians need to be obtained. Generally, research that entails human men and women ought to continuously be carried out with the quintessential knowledgeable consent. Informed consent is a simple ethical philosophy of scientific research on human participants.
1.3.2. Does the research cause direct harm to research subjects?
However, the cardinal rule is that contributors should be blanketed from any possible discomfort or emotional misery emanating from the research project. Thus, it is your accountability as a researcher to inform the individuals of the typical cause of the study. One of the ordinary moral challenges is to have the functionality to weigh the manageable advantages of doing research in opposition to the opportunity of injury to the humans being studied (participants. Furthermore, one need to point out to the people their characteristic in the research assignment.
1.3.3. Does the research promote anonymity?
On the other hand, information can additionally have names or codes related to it, however the researcher will have to maintain the names or codes secret from the public. On the one hand, it is may also additionally be essential to enable the individuals the proper to determine out on how, where and to what extent their attitudes, beliefs and behaviour will be revealed. Secondly, anonymity can be associated with privacy and confidentiality. Firstly, it relates to the duty to make positive that it is now not feasible to find out the participants in a research project. Anonymity addresses many potential difficulties.
1.3.4. Does the research deal with the manipulation of information?
This capacity that members commonly have the right to agree or refuse to take part in your research. Factors such as coercing, undue effect or deceiving the participants point out the absence of or negate voluntary participation. It is your responsibility as a researcher to make sure that the participants participate in your research voluntarily. Accordingly, you need to usually recognize this right.
1.3.5. Does the research potentially tamper with the research field for other researchers?
It is unethical for the researcher to tamper with other researcher work especially of the same fields that he/she is also working on. It will also amount to plagiarism, using someone’s work and present it as one’s own without giving credit to the owner. It will amount to disciplinary steps to be taken.
1.4. The social justice issues that are raised in the scenario.
There was once a protest recently in the neighbourhood of Mamelodi, specifically the team named “the worried parents”. Moreover, the concerned mother and father as they had been indignant with the view in which the court deals and offers the criminal and their conviction. However, the group raised issues that relate to crimes such as the following:
1.4.1. toddler abuse.
1.4.2. child pornography.
1.4.3. statutory rape.
About Plagiarism and examples
The term “plagiarism” is debated vastly in academia. What we seek to do here is to show you some of the accepted definitions of this term. The Oxford English Dictionary defines plagiarism as the “action or practice of plagiarising; the wrongful appropriations or purloining, and publication as one’s own, of the ideas, or expression of the ideas of another”. Furthermore, it is “fraud that occurs when a researcher steals the ideas or writings of another or uses them without citing the source.
2.1. It arises in conditions the place a researcher fails or omits to indicate clearly, for instance with quotation marks or indent and special font, phrases or passages taken verbatim, that is, word for word, from a posted or unpublished text, except crediting the authentic textual content and author.
2.2. It takes place in cases where a statute, case law, book, article, or digital text is paraphrased except acknowledging the supply or sources and the creator thereof.
2.3. It arises in instances where greater than a full-size section of or the entire statute, case law, book, article, or digital textual content is used.
S v Makwanyane and Another (CCT3/94) 1995 ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; 1996 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995).
According to CHASKALSON P : The two accused in this matter had been convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. The Appellate Division dismissed the appeals towards the convictions and concluded that the situations of the murders were such that the accused must get hold of the heaviest sentence permissible according to regulation. They appealed to the Appellate Division of the Supreme Court in opposition to the convictions and sentences. They had been sentenced to death on each of counts of murder and to long terms of imprisonment on the other counts.
3.1. The facts of the case.
It does not deal specifically with the death penalty, but in section 11(2), it prohibits “cruel, inhuman or degrading treatment or punishment. Chapter Three of the Constitution sets out the fundamental rights to which every person is entitled under the Constitution and contains provisions dealing with the way in which the Chapter is to be interpreted by the Courts. There is no definition of what is to be regarded as “cruel, inhuman or degrading” and we, therefore, a need to give meaning to these words ourselves.
In giving meaning to section 9, O´Regan J seek the purpose for which it was included in the Constitution. This purposive or teleological approach to the interpretation of rights may at times require a generous meaning to be given to provisions of chapter 3 of the Constitution, and at other times a narrower or specific meaning. It is the responsibility of the courts, and ultimately this court, to develop fully the rights entrenched in the Constitution. Consequently, any minimum content which is attributed to a right may in subsequent cases be expanded and developed. But that will take time.
3.2. The legal questions.
3.2.1. Is capital punishment for murder justifiable? The question that now has to be considered is whether the imposition of such punishment is nonetheless justifiable as a penalty for murder in the circumstances contemplated by sections 277(1)(a), 316A and 322(2A) of the Criminal Procedure Act ?
3.2.2. Can, and should, an unelected court substitute its own opinion of what is reasonable or necessary for that of an elected legislature?
3.2.3 Would the carrying out of the death sentence on these 143 persons have deterred the other murderers or saved any lives?
3.2.4 Should this be determined subjectively from the point of view of the individual affected by the invasion of the right, or objectively, from the point of view of the nature of the right and its place in the constitutional order, or possibly in some other way?
3.2.5 If the law recognises the right to take the life of a wrongdoer in a situation in which self-defence is justified, then, to deter others, and to ensure that the wrongdoer does not again kill an innocent person, why should it not recognise the power of the state to take the life of a convicted murderer?
3.2.6 This “planned and calculated termination of life itself” was permitted in the past which preceded the Constitution. Is it now permissible?
3.2.7 Does our constitution permit any convicted criminal, however heinous the crime, to be put to death by the government as punishment for that crime?
3.3. The decision of the court.
It gave its approval to a technique which, at the identical time as paying due regard to the language that has been used, is “generous” and “purposive” and offers expression to the underlying values of the Constitution. In S v Zuma and Two Others, this Court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in Chapter Three of the Constitution.
As Kentridge AJ described in the first judgment of this court (S v Zuma unreported judgment of this court, 5 April 1995), many of the rights entrenched in section 25 of the Constitution regarding criminal justice are longstanding requirements of our law, even though eroded with the useful resource of the statute and judicial decision. In decoding the rights contained in section 25, these common law standards will be useful courses.
It used to be dealt with in this judgment solely with the provisions of section 277(1)(a) of the Criminal Procedure Act, however it is clear that if subsection (1)(a) is inconsistent with the Constitution, subsections (1)(c) to (1)(f) need to additionally be unconstitutional, so too have to provisions of regulation corresponding to sections 277(1)(a), (c), (d), (e) and (f) that are in pressure in components of the country wide territory in terms of section 229 of the Constitution. Different concerns arising from section 33(1) would possibly perchance practice to subsection (b) which makes provision for the imposition of the death.
3.4. The importance of the case in relation to the notion of Ubuntu.
While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to primary norms and collective unity, in its integral feel it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from disagreement to conciliation. Mokgoro J held that: Metaphorically, ubuntu expresses itself in umuntu ngumuntu ngabantu, describing the importance of team spirit on survival issues so central to the survival of communities. Here the word was given its first full exposition by using the courts. “In this sense, ubuntu made its debut in the jurisprudence of the Constitutional Court in S v Makwanyane.”
3.5. The link of transformative constitutionalism with this case.
Therefore, transformative constitutionalism needs to take place in an environment that promotes the democratic values of human dignity, equality, and freedom. The vision of the Constitution is to create a South Africa that is primarily based on democratic values, social justice, and fundamental human rights. For Langa J, this is the core notion of transformative constitutionalism: that people need to change. Particularly, the phrases “we, the people of South Africa” in the Preamble to the Constitution suggests this collective duty transform. In addition, the Constitution enjoins everyone to be concerned in a process to radically change South Africa according to Langa J.
It similarly states that “Even if the formation of this common norm is nonetheless underway, the Special Rapporteur considers that most stipulations beneath which capital punishment is really applied render the punishment tantamount to torture and that underneath any other, less extreme conditions, it nonetheless quantities to cruel, inhuman or degrading treatment. In conclusion, there is no express evidence that any method of execution in use these days complies with the prohibition of torture and cruel, inhuman or degrading treatment in every case. The United Nations Special Rapporteur on Torture in this 2012 file resumes the jurisprudence concerning execution techniques.