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- Volume 19, Issue 1, 2006
South African Journal of Criminal Justice - Volume 19, Issue 1, 2006
Volume 19, Issue 1, 2006
Author Elizabeth R. HusaSource: South African Journal of Criminal Justice 19, pp 23 –36 (2006)More Less
'It is the Intent of this Act to afford victims of domestic violence the maximum protection from abuse the law can provide'. The Domestic Violence Act 116 of 1998 (the DVA) opens with this statement, but it seems to be far from the starting point that magistrates use when applying the DVA. Magistrates report that they treat interdicts for emergency monetary relief with more caution and rarely compensate for economic abuse. This hesitancy is troubling. Using text and legislative history of the DVA, this article asserts that the economic provisions are central to the purpose for which the DVA was enacted. By not implementing them, magistrates are misapplying the DVA and failing in their constitutional duty to deal effectively with domestic violence. Furthermore, this misapplication is unnecessary. Magistrates can implement the DVA to its fullest measure despite the flaws in the judicial system, and this article concludes with suggestions as to how this can be done.
Evaluating the 'first report' : the persistent problem of evidence and distrust of the complainant in the adjudication of sexual offencesAuthor Karam SinghSource: South African Journal of Criminal Justice 19, pp 37 –55 (2006)More Less
This article looks at the issue of the first report, which exceptionally permits a complainant in a sexual offence case to offer a previously consistent statement into evidence. In the law of evidence a previous consistent statement is a written or oral statement, made by a witness on some prior occasion to testifying, which is substantially similar to her testimony in court. Normally, previous consistent statements are deemed to be inadmissible at trial because such testimony is considered to be self-serving and lacking in probative value. However, throughout jurisdictions following the Anglo-American tradition previous consistent statements in sexual offences are allowed as an exception to the general rule. This article reviews the history of the first report rule, including critical feminist legal critique of the rule's origins. The paper proceeds with a comparative look at divergent approaches to reform that have emerged with the rule in foreign jurisdictions. This analysis includes a review of reform proposals from the South African Law Commission (now the South African Law Reform Commission) before looking at a recent controversial case in the Supreme Court of Appeal that dealt with the first report, namely the case of <I>S v Hammond</I>.
Author Joanna SimonSource: South African Journal of Criminal Justice 19, pp 56 –78 (2006)More Less
The South African Law Commission recently rejected the proposal that prerecorded videotaped evidence of child witnesses be used in the trial process as a way of protecting the child from further trauma and assisting the court in its truth seeking function. This article examines whether the Law Commission's position is well founded. It analyses the problems attendant on the present system with regard to child witnesses, arising chiefly from its adherence to the adversarial system and the focus on aggressive cross-examination of the child witness, and suggests videotaped evidence as a possible solution. The main potential barriers to implementing such a procedure, namely the traditions of orality and the rules against hearsay, as well as the Constitutional argument regarding the right to a fair trial, are examined. It is concluded that such issues could be successfully overcome, provided the necessary safeguards are in place in order to protect the rights of the accused. The only real problem attendant on this procedure seems to be one of implementation and lack of resources. However, it is questioned whether this is a sufficiently strong argument against allowing a procedure that could potentially hold such significant benefits.
Author Kent RoachSource: South African Journal of Criminal Justice 19, pp 79 –83 (2006)More Less
Author Wilfried ScharfSource: South African Journal of Criminal Justice 19, pp 83 –86 (2006)More Less