Acta Juridica - Volume 2003, Issue 1, 2003
Volume 2003, Issue 1, 2003
Source: Acta Juridica 2003, pp XI –XXII (2003)More Less
The title of this work indicates that the dilemmas of criminal justice under examination are located within a new society. The society reflected is not only a new, democratic South Africa under a Bill of Rights but also the rapidly changing global society. The authors invited to contribute to this volume have been chosen both for their recognised expertise in criminal justice in its broadest sense and because they can assist in placing the problems of criminal justice analysed in this volume in a broader global or universal context. The essays have all been reviewed by an independent assessor prior to publication.
The collection of the essays into clusters under general headings is not designed to detract in anyway from the universality of the issues discussed but rather to locate the problem areas within more familiar contexts.
Author Dale HutchisonSource: Acta Juridica 2003, pp V –VII (2003)More Less
I count it as one of the blessings of my life to have been taught by Israel 'Solly' Leeman whilst studying for my law degree at University of Cape Town in the early seventies. In those days he was responsible for teaching a large number of courses, including comparative law, copyright and conflict of laws, but his great love, and the course in which he truly excelled, was criminal law. Although all of his teaching was of a very high standard, it was his lectures in criminal law that earned him a well-deserved reputation as the best lecturer in the Law Faculty, and which made such a deep and lasting impression on his students. The esteem in which they held him, and still hold him, was evident to all who attended the function to mark his retirement from full-time teaching at the end of 2000. Seldom have we in the Faculty witnessed such a genuine and spontaneous outpouring of admiration, affection and respect as on that occasion.
The tension between legal theory and policy considerations in the general principles of criminal law : general principles of criminal liability and specific offencesAuthor C.R. SnymanSource: Acta Juridica 2003, pp 1 –22 (2003)More Less
Law is the expression of an artificial logic, and this is particularly evident in the field of substantive criminal law. Rules of law, and particularly those relating to criminal law, seldom, if ever, consist entirely of a purely logical application of a premise. There is always a tension between two forces: namely, first, abstract theory, adherence to legal dogma or systematic reasoning; and, secondly, the concrete or practical demands of social reality, pragmatism or policy considerations.
This tension is largely also a tension between subjectivism and objectivism. By 'subjectivism' is meant the approach to criminal liability which places the emphasis on the subjective considerations pertaining to the individual offender, and by 'objectivism' the approach which emphasises the expectation of society that the conduct of individuals should conform to certain basic standards, in order to ensure that society operates peacefully and that justice between individuals or between an individual and the state is upheld.
The purpose of this chapter is to consider some of the most important points of tension between legal theory and policy considerations within the framework of the general principles of South African criminal law. Most topics deal with aspects of the culpability element, because it is in this element of liability that the debate between subjectivism and objectivism is particularly evident. Subjectivism often flows from the dictates of criminal-law theory, and objectivism often, if not mostly, from policy considerations. The tension between subjectivism and objectivism is particularly evident in the rules relating to the defence of provocation. The recent judgment of the Supreme Court of Appeal in Eadie highlights this tension. Later in this chapter this decision will come under close scrutiny.
Up to around 1950, subjective considerations pertaining to criminal liability played a subordinate role in the construction of criminal liability in South Africa. The subjective test for intention only developed in the course of the 1950s. From about this period it became clear that the courts regarded the test for determining intention to be purely subjective: in murder cases, for example, the question was no longer whether a reasonable person in the position of the accused would have foreseen that the act might lead to the victim's death, but whether the particular accused, in the light of all his personal characteristics such as intelligence or lack thereof, degree of intoxication, any possible degree to which he might have been provoked, his age and sex, had in fact appreciated the possibility that death might ensue.
A provocative response to subjectivity in the criminal law : general principles of criminal liability and specific offencesSource: Acta Juridica 2003, pp 23 –47 (2003)More Less
The criminal law is riddled with numerous value-laden judgements: distinctions between the extent of criminal liability attaching to acts rather than omissions; between the factual and the legal chain linking conduct and consequence; between the criminal results of prohibited acts perpetrated under pathological, as opposed to non-pathological, influences; between criminality of intentional as opposed to negligent conduct; between the degree of liability of perpetrators and accessories; and between completed and inchoate offences. Value-laden judgements implicit in these decisions leave inherent scope for discretion and discretion, of course, permits an essential balancing of interests.
Tension between descriptive and normative rules in the criminal law is no more apparent than in the attitude of the courts to the predicament of a killing that was provoked. Should the law even countenance provocation as a defence to criminal liability, as opposed to recognising that provocation could serve to mitigate the severity of sentence? Should the law adopt a middle course by acknowledging some limited hybrid form of defence whereby conduct, which would otherwise have been sufficient to constitute full-blown criminal conduct, might be 'partially excused', if perpetrated under severe provocation? Should the law give the defence its fullest possible legal relevance by concluding that provocation, of sufficient degree, could completely negate criminal liability? If provocation raises an issue of criminal capacity, then is this capacity judged entirely subjectively or is there an objective, normative dimension to the capacity inquiry?
New perspectives on the criminal liability of corporate bodies : general principles of criminal liability and specific offencesAuthor Louise JordaanSource: Acta Juridica 2003, pp 48 –71 (2003)More Less
The capacity of corporate bodies for criminal liability is an area of law which has received very little attention in South African law. The traditional premise of criminal law is that only a natural person is capable of performing an unlawful act with a blameworthy state of mind. Corporate bodies are accordingly held accountable for crimes on a derivative basis in South African law. Broadly speaking, this means that the state has to prove that an agent or servant of the corporate body, acting within the scope of his or her employment or authority or while furthering the interests of the corporate body, committed a crime. The unlawful act and culpability of the individual servant or agent are then imputed to the corporate body. Although broader in scope, this type of liability developed from the doctrine of vicarious liability, traditionally applied in the field of delict.
During the last few decades, derivative bases of corporate criminal liability have been questioned by legal writers in a number of common-law jurisdictions. Various proposals for reform have emerged, the most innovative of which is a rejection of derivative liability in favour of a model envisaging direct corporate liability. More cautious proposals concern the creation of specific corporate offences involving negligence.
This chapter examines new models of corporate criminal liability which emerged during the last decade in jurisdictions such as the United Kingdom and Australia. Similar developments on the European continent, for instance in Belgium, and also in the broader European Union are discussed. The comparative study reveals that the international trend is towards imposing criminal liability on juristic persons increasingly independent of proof of misconduct of a particular individual. The conclusion reached is that the criminal liability of juristic persons in South African law is not only out of touch with developments elsewhere, but may be found to be inconsistent with the South African Constitution. The chapter proposes legislative reform in this field so as to respect constitutional values.
'A wall of words' : redefining the offence of rape in South African law : general principles of criminal liability and specific offencesSource: Acta Juridica 2003, pp 72 –91 (2003)More Less
Nine years into South Africa's democratic dispensation, the levels of violence against women, particularly sexual violence, remain alarmingly high. The frequency, extent and nature of sexual violence in South Africa have gained international attention over the past years. Although it is a crime that affects all South Africans, women are far more likely to be the victims, and evidence suggests that the already unacceptably high rate of sexual assault continues to increase. Increasingly, too, the link is being drawn between women's sexual victimisation and their extreme vulnerability to sexually transmitted infections and HIV/AIDS.
Against this background, the recent publication of the South African Law Commission's Report on Sexual Offences is significant. This report, which includes a draft Sexual Offences Bill, represents the conclusion of the commission's comprehensive investigation into sexual offences against children and adults. It recommends a number of incisive amendments to existing law, ranging from the substantive definitions of criminal offences to matters of procedure and evidence. These rules were long described as inadequate and unsatisfactory, particularly from the perspective of rape complainants.
Author P.J. SchwikkardSource: Acta Juridica 2003, pp 92 –112 (2003)More Less
The relationship between common sense and rationality as well as the desirability of drawing a negative inference from an accused or suspect's silence are the basis of a centuries old debate. At present the common sense argument that the right to remain silent should be restricted as it only protects the guilty is gaining support. Eminent judges such as Van Dijkhorst J and Nugent JA have articulated strong arguments in favour of restricting the right to remain silent. The South African Law Commission has recently proposed that in a number of specified circumstances adverse inferences be permitted to be drawn from pre-trial silence. There is no doubt that such a view has both popular and political support. The argument for restricting the right to silence has also received support internationally. The law commission's proposals are largely modelled on the English Criminal Justice and Public Order Act 1994.
Restricting the right to remain silent raises a host of constitutional issues. Section 35 of the Constitution expressly confers the right to remain silent on accused and arrested persons. Clearly imposing a criminal sanction on a person who elects to remain silent would infringe these constitutional rights. It is more debatable whether drawing an adverse inference from a person's failure to speak up in specified circumstances would similarly infringe the right to remain silent. However, the broad focus of this chapter is not constitutionality - although the arguments raised below remain relevant to a limitations analysis. What this chapter examines is the common sense assertion that silence is claimed by and protects the guilty and that restricting the right to remain silent will enhance the effective functioning of the criminal justice system. The scope of the chapter is further narrowed by focussing on only one of the amendments proposed by the South African Law Commission namely, that a court be allowed to draw an inference from the accused's failure to mention a fact when questioned by the police prior to, or on being informed of, the charge or potential charge if the accused then relies on the unmentioned fact later at his or her trial. Because those who favour restricting the right to remain silent make strong common sense claims, this chapter also makes a tentative attempt to explore the role of common sense in decision making.
Author Andrew PaizesSource: Acta Juridica 2003, pp 113 –138 (2003)More Less
It is common, when writing a legal textbook, to begin with a general introductory chapter in which the theoretical foundations of the subject are expounded and explained. Chapters of this kind usually hold little of interest for those who are concerned primarily with finding practical answers to legal problems. They are, typically, ignored by them as being the province of academics who amuse themselves and each other by posing and solving riddles that stimulate the mind but have little bearing on the often prosaic world of legal practice. The question that forms the title of this chapter would, no doubt, suggest to some, this kind of exercise. 'Who cares,' one can imagine some people thinking, 'about competing "theories of proof?"'
My purpose in writing this chapter is to show that such views are harmful and wrong. I hope to show that the selection of one or other 'theory' of proof is of the greatest practical importance and that fundamental every-day problems of proof cannot adequately be addressed without making such a selection. I propose to indicate, too, what the implications of the chief competing theories are, and, finally, to put forward some ideas on how we might go about determining which of the theories might best serve us in particular cases.
Undue delay in criminal cases : the Scottish and South African courts' response : evidence, criminal process and criminologyAuthor Esther SteynSource: Acta Juridica 2003, pp 139 –159 (2003)More Less
If we consider the rules governing civil or criminal matters, it is evident that time fulfils an important function in most legal systems all over the world. Much depends, for example, on the lapse of time between the issuing and serving of a legal document; or bringing a matter to trial before the prescription period of the offence; or disposing of a matter without it being unduly delayed. Despite varying practices which regulate these processes that are all concerned with a period of time, we find that time itself is neither specified nor defined as a standardised unit in most criminal justice systems. Nevertheless, courts are expected to determine whether a criminal matter has been unduly or unreasonably delayed without being given a yardstick by which to measure it. In some cases it is crucial to determine the starting point from which the time period should be calculated. Should one begin the calculation when an accused person is charged or start counting from the first day of appearance in court? It is essential to analyse these questions in order to consider the approaches adopted by the courts in South Africa and Scotland in deciding whether a matter has been unduly or unreasonably delayed, in circumstances where time is not standardised.
Why should we look specifically at the systems of these two countries? The answer is simple. First, both Scotland and South Africa recently adopted human rights laws that impact drastically on their criminal justice systems and secondly, the way trials are conducted in both countries. Furthermore, both countries have 'mixed' legal systems, reflecting influences from 'Civilian' and 'Anglo-American' systems and facing similar challenges in the criminal justice sphere. In this chapter the different responses of the two systems to the notion of undue delay will be examined and specific attention will be paid to the shortcomings of each system.
Stumbling at the first step? Lost opportunity in the transformation of the South African justice system? : evidence, criminal process and criminologySource: Acta Juridica 2003, pp 160 –174 (2003)More Less
Countries undergoing a transition from authoritarian to less authoritarian governance face momentous challenges. Meaningful democratisation requires simultaneous fundamental change across a wide swathe of state institutions. As one form of state-control and social alignment is being dismantled, the new paradigm is being introduced. In the South African experience, apart from the structural amalgamation of 11 political entities into one, significant attitudinal and behavioural changes were expected from most of apartheid's civil servants at the dawn of democracy.
Human rights required that more care be taken in balancing competing needs. Not only do institutions consequently battle with the introduction of a new paradigm but they are required to deliver to the community at large in terms of this model and most importantly, be perceived to be doing so on a basis that improves the benefits for local communities.
Transformation is, first, about managing the structural change within institutions, secondly, about local communities' perception of the benefits they derive, and, thirdly, their understanding of the processes that deliver such benefits. Transformation is therefore, structural change, delivery of more appropriate services to the community and education about the processes taking place. Transformation cannot be seen to have taken place if institutional change has occurred but the broader community experiences negligible improvement.
This indeed is the core dilemma for a new government facing the need to transform and deliver. Transforming large state institutions is by its very nature a long-term project whose benefits are only perceptible within a decade or more of the process having started. Communities which have fought long and hard for regime-change might have to suffer longer, even experience deterioration of services, while the institutional and policy-change road is walked, sometimes haltingly. Is this feasible or is the price too high for the newly enfranchised communities? What do the communities do in the interval - resign themselves to limited change and continue suffering, or take the law into their own hands? It is argued that it is practical to be rather more strategic in approach and select a certain number of local level projects that can deliver tangible results within the short term, months or few years, drive them hard so that communities experience some improvements but make sure that these projects can be (and are) incorporated into the larger structural change projects. Short-term projects that adequately deliver are likely to fail in the medium term if the broader organisational change does not coincide with the appropriate institutional support systems. However, swinging to the opposite extreme and primarily concentrating on the broader picture may mean the critical loss of community goodwill that is not easily re-established and can no longer ride the wave of the transforming goodwill established through a positive regime-change.
Author Julia Sloth-NielsenSource: Acta Juridica 2003, pp 175 –193 (2003)More Less
The Child Justice Bill will, when enacted, provide legislatively for a separate juvenile justice system for South Africa. Although non-governmental organisations can be regarded as having provided the impetus for law reform in the first half of the 1990s, the formal law reform process commenced at the end of 1996 with the appointment of a project committee of the South African Law Commission briefed to undertake the investigation. The law commission produced three documents during the life span of the project committee: an Issue Paper, a Discussion Paper and Draft Bill and the Report on Juvenile Justice, which also contained a more polished version of the proposed new statute. The Child Justice Bill, which was introduced into parliament on 13 August 2002, was debated in 2003.
During the law reform process, several articles which profiled the salient themes of the envisaged system were published, both within South Africa and in international journals. The writers of many of these publications were members of the South African Law Commission Project Committee that drafted the Report on Juvenile Justice. The present author, too, was part of that process.
Chiefly, existing documents point to three distinctive characteristics of the draft legislation. First, they highlight the importance of restorative justice principles which flavour the Bill's provisions, especially in relation to diversion, sentencing, and the overall objectives of the Bill as a whole.
Secondly, they relay how the international legal principles contained in the United Nations Convention on the Rights of the Child, the Beijing Rules and the Standard Minimum Rules for Juveniles Deprived of their Liberty have been translated into domestic legal rules via both the Constitution of the Republic of South Africa and, more pertinently, encapsulated directly in many provisions of the Bill.
Thirdly, they outline the novel attempt made in the Bill to regulate and provide a framework for diversion. Diversion of young offenders from criminal courts into a variety of programmes is now well-established practice, especially in many larger urban courts. Hitherto, diversion occurred at the discretion of the prosecution, although there have been initiatives within the prosecutorial service to develop guidelines on diversion for use by lower court prosecutors, and one or two case reports regarding diversion have seen the light of day. Centrally, the Bill devotes an entire chapter to the regulation of diversion, establishing the principle that diversion must at least be considered in each case before the matter proceeds to trial. In addition, diversion is provided for on a series of levels, indicating that more intensive programmes should be reserved for more complex cases. A signal feature, too, is the inclusion of a range of new diversion options, designed to supplement and extend the list of possibilities presently available.
Mandatory and minimum sentences : considering s 51 of the Criminal Law Amendment Act 1997 : sentencingAuthor Stephan TerblancheSource: Acta Juridica 2003, pp 194 –220 (2003)More Less
The President's signature brought ss 51 to 53 of the 1997 Criminal Law Amendment Act into operation on 1 May 1998. By specifying certain conditions to certain crimes, attended by specific terms of imprisonment, these provisions brought quite a drastic adjustment to the way in which the courts determine sentences that are to be imposed for these offences.
Initially, the Act was intended to be a short-term measure that would have 'ceased to have effect' on 30 April 2000. However, the President extended its operation according to powers afforded him, first for one year and then for a further two years. On 30 April 2003 when it ceased to have effect, its operation was extended for another period of two years.
In this chapter I attempt to consider the finer details of s 51, including those not yet interpreted by the courts. In order to do so the intention of the legislature and the courts' approach in interpreting the provisions have to be considered as well. In closing, a brief attempt is made to evaluate the Act.
Civil disabilities of former prisoners in a constitutional democracy : building on the South African experience : sentencingAuthor Dirk Van Zyl SmitSource: Acta Juridica 2003, pp 221 –237 (2003)More Less
One of the salient features of the apartheid legal order was the extent to which it used the criminal law to suppress opposition to the government. Opponents were not only prosecuted for political offences but also subjected to various forms of civil disability after they had served their sentences. In the most extreme case, this took the form of legislation allowing for their detention after they had served their sentence. More often the civil disability took the form of banning orders, which could include 'house arrests'. Even those who had served their full sentences were effectively removed from civil society. Former prisoners were denied the right to stand for parliament if they had been convicted of an offence involving imprisonment for more than 12 months within the previous five years. Not that this was necessarily such a hardship, as the right to be a candidate for parliament was denied to the majority of the population on the basis of race. More importantly, banning orders prevented their writings being quoted and even stopped them meeting more than one person at a time, effectively excluding them from taking part in the life of civil society at all.
All this now has changed at the formal level. South Africa today is a constitutional democracy with a justiciable Bill of Rights. This chapter investigates the implications of these changes for the civil status of former prisoners. In the process of political change there were developments, such as universal suffrage, which improved the general civil status of the majority of the population, including former prisoners, and which brought particular benefits to former political prisoners. These particular benefits could be pointers to how all former prisoners ought to be treated.
The chapter goes on to point out that in practice the position of most former prisoners has not improved significantly and that most, if not all, of the old legal disabilities remain intact. Nor has the new constitutional order engaged directly with the position of former prisoners. Nonetheless, the new South African constitution does supply the basis for asserting the rights of former prisoners in a way that could diminish their civil disabilities. South African constitutional law should follow the lead of English and German law in this regard though difficulties of converting such developments into practice must be acknowledged.
Hague law comes home : prosecuting weapons offences at the International Criminal Court : international criminal lawAuthor Robert CryerSource: Acta Juridica 2003, pp 238 –255 (2003)More Less
The coming into being of the International Criminal Court (ICC) has been the cause of considerable celebration around the proverbial 'invisible college' of international lawyers. And rightly so. Lord Justice Sedley of the English Court of Appeal has more than a little justification for his view that the ICC represents 'the greatest single advance ever made in international humanitarian law enforcement'. Nonetheless, judgement on the humanitarian law aspects of the Rome Statute must be deferred at least until the relevant provisions have been subjected to a thorough examination. It is the purpose of this chapter to evaluate some of those provisions, namely those relating to the use of prohibited weapons from the perspective of both international law and criminal law.
International humanitarian law has traditionally been split into two sub-categories, 'Hague' law and 'Geneva' law, so named after the places where the primary treaties relating to each were drafted. In short, Geneva law is concerned with the protection of those persons not involved in hostilities, while Hague law deals with the conduct of hostilities in relation to legitimate targets. These classifications were never entirely satisfactory; for example, attacks on legitimate targets (Hague law) may have effects on those not taking part in hostilities (which might more naturally fall under Geneva law). In addition, the 1977 Additional Protocol I to the Geneva Conventions dealt with matters traditionally considered to be within the ambit of both Geneva and Hague law.
Defining the crime of aggression : an important agenda item for the Assembly of States Parties to the Rome Statute of the International Criminal Court : international criminal lawAuthor Daniel D. Ntanda NserekoSource: Acta Juridica 2003, pp 256 –286 (2003)More Less
On 1 July 2002 the International Criminal Court came into existence, sixty days after the Rome Statute establishing it was ratified by at least 60 states. This was approximately four years after a Conference of Plenipotentiaries that met at Rome in 1998 adopted the Statute. The court has jurisdiction over the most serious crimes of international concern: genocide, crimes against humanity, war crimes and the crime of aggression. While the Statute defines genocide, crimes against humanity and war crimes it does not define aggression. Indeed, aggression would have been omitted from the list altogether, were it not for the insistence of delegations from the non-aligned movement as well as a few European states, notably Germany. Given the highly political nature of the crime, the pressure for time and the tense atmosphere that prevailed at the Rome Conference it was well nigh impossible for the Conference to arrive at a satisfactory consensus on this controversial matter. The solution was for the Conference to assign the task of defining the crime to the Assembly of States Parties.
The trend to 'universal extradition' over subsidiary universal jurisdiction in the suppression of transnational crime : transnational and organized crimeAuthor Neil BoisterSource: Acta Juridica 2003, pp 287 –313 (2003)More Less
Since the nineteenth century, criminal activity has, at first gradually and then more rapidly, developed a significant extra-territorial dimension with criminals engaging in cross-border activity both in response to market opportunities and in order to reduce their vulnerability to law enforcement. In the twentieth century, the opening of markets, the free movement of persons, goods, capital and services and the improvement in transport and telecommunications provided a perfect opportunity for the globalization of culture, commerce and crime. This globalization of crime continues today, and it presents, essentially, two kinds of legal problems for states.
Author Stefan CassellaSource: Acta Juridica 2003, pp 314 –359 (2003)More Less
Asset forfeiture came into prominence as a law enforcement tool in the United States during the 1990s. At the beginning of that decade, the Department of Justice - the principal federal law enforcement agency - was forfeiting approximately $200 million per year in criminal assets, mostly from drug cases. By the end of the decade, it was forfeiting over $600 million per year in assets involved in an enormous variety of serious crimes.
In short, in the last decade, asset forfeiture became institutionalized as an essential weapon in the arsenal that the federal law enforcement agencies in the United States could bring to bear on the perpetrators of crime. But the statutes, procedures and policies that govern the application of the forfeiture laws did not spring full-grown from a single Act of Congress. Nor were the various statutes that were enacted piecemeal over many years accepted by the courts without scepticism or controversy. To the contrary, laws and concepts that were slowly developed throughout the nineteenth and twentieth centuries were greatly expanded in the last 20 years, applied in new contexts, and subjected to close scrutiny by a sceptical judiciary. Only now, after more than a dozen constitutional challenges in the Supreme Court of the United States and the enactment of comprehensive reform legislation, can it be said that most of the major issues have been settled. Many issues remain, but to a large extent when the practitioners of forfeiture law go to federal court today, they are litigating over the details.