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- Volume 19, Issue 2, 2006
South African Journal of Criminal Justice - Volume 19, Issue 2, 2006
Volume 19, Issue 2, 2006
'Dealing with differences' : admitting expert evidence to stretch judicial thinking beyond personal experience, intuition and common senseAuthor Alistair PriceSource: South African Journal of Criminal Justice 19, pp 141 –151 (2006)More Less
Judges are often required to determine and evaluate the state of mind and behaviour of persons whose characteristics and life experiences differ markedly from their own. Given that, for example, most judges are men, it is likely that few judges have been raped or have undergone long-lasting physical and mental abuse. This task - 'dealing with differences' - forces judges to decide issues beyond the limits of their personal experience. In doing so, they frequently reject expert psychological opinion as irrelevant and thus inadmissible, preferring instead to rely exclusively on common sense and intuition. This dismissive attitude is unjustifiable. Although judges often draw fair and correct inferences when faced with 'difference', this will not always be the case. Advances in psychology suggest that lay observers frequently misunderstand the conduct of others which falls both within (and more pertinently) without the observers' experience. Judges too are such observers, and as such, may be greatly assisted by behavioural experts in cases of 'difference'. The courts therefore ought to widen the door to psychological opinion by sensibly applying the test for admissibility (ie is the expert <i>better able to draw inferences</i> than the judge?). This approach will ensure that witnesses and accused persons are not prejudiced simply because they do not share certain characteristics or life experiences with a presiding officer.
When do parents go too far? Are South African parents still allowed to chastise their children through corporal punishment in their private homes?Author Bernard BekinkSource: South African Journal of Criminal Justice 19, pp 173 –191 (2006)More Less
With the commencement of the Constitution of the Republic of South Africa 1996, the focus of the private law has increasingly shifted from parents to children. This has not only been the case under South African law but also according to International Law. According to this new legal paradigm, many calls have been made to abolish all forms of corporal punishment by parents of their children. There seems to be wide consensus that the common law authority of reasonable and moderate chastisement has become irreconcilable within a modern value orientated constitutional dispensation. Notwithstanding the fact that political powers are undecided on whether to prohibit all forms of corporal punishment on children and that society is not informed or trained on alternative educational measures, it is submitted that the application of corporal chastisement, even in the private family environment, has become unconstitutional. Such a form of punishment should thus be declared invalid and relegated to a relic of our legal past.
Medical negligence as a causative factor in South African criminal law : novus actus interveniens or mere misadventure?Author P.A. CarstensSource: South African Journal of Criminal Justice 19, pp 192 –211 (2006)More Less
The aim of this article is to assess the validity and applicability of medical negligence as a <i>novus actus interveniens, </i> with reference to recent South African criminal case law. Such an assessment necessitates an analysis of the most important rules pertaining to causation in South African criminal law. In the context of medical negligence as a new intervening act, reference is made to the influence of medical errors of judgement and the concept of medical misadventure. The judicial 'grading' of criminal medical negligence as 'gross' or 'overwhelming', with reference to relevant case law, is also explored and criticised. It is submitted that the courts should avoid 'grading' medical negligence by way of policy considerations to establish the absence of a <i>novus actus interveniens.</i> They should rather make a principled assessment of medical negligence, with due consideration to the concepts of medical misadventure and professional errors of judgement. More often than not, a principled assessment will lead to a finding that there was no medical negligence and consequently no <i>novus actus interveniens, </i> even in the face of adverse consequences.
Suggestions on the application of the bifurcated placement Policy of the Department of Correctional ServicesAuthor G.J. LidovhoSource: South African Journal of Criminal Justice 19, pp 212 –227 (2006)More Less
This article aims at assessing the intentions of the legislature in proposing and abandoning various statutory amendments leading to the current placement policy of the Department of Correctional Services. Such amendments have left a trail of conflicting and sometimes contradictory messages that cause confusion. In the end, legislative reform of the placement policy seems to have been undermined by a failure to apply a purposeful interpretation to the relevant statutes in the light of the case law.
Author Max Du PlessisSource: South African Journal of Criminal Justice 19, pp 228 –231 (2006)More Less