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- Volume 20, Issue 2, 2007
South African Journal of Criminal Justice - Volume 20, Issue 2, 2007
Volume 20, Issue 2, 2007
The Thatcher case and the supposed delicacies of foreign affairs: a plea for a principled (and realistic) approach to the duty of government to ensure that South Africans abroad are not exposed to the death penaltyAuthor Max Du PlessisSource: South African Journal of Criminal Justice 20, pp 143 –157 (2007)More Less
Thatcher v Minister of Justice and Constitutional Development 2005 (4) SA 543 (C) came before the Cape High Court because of an attempted coup in Equatorial Guinea. The case attracted further interest for another reason. That is because the Thatcher concerned was none other than Sir Mark Thatcher, British national and son of Britain's Iron Lady.
Source: South African Journal of Criminal Justice 20, pp 158 –181 (2007)More Less
The past decade has seen a number of legal, practice and policy-based interventions made in order to ensure that the criminal justice system is more responsive to rape complaints. At their most instrumental, the aim of both shifts in practice and in the laws relating to sexual offences is to increase reporting and conviction rates in rape cases. One of the greatest problems with the criminal justice system's response to rape remains, however, that most reported cases do not in fact make it through the system to trial. This article reflects on two attrition studies conducted by the authors between 2003 and 2006, together examining the disposition of approximately 600 rape cases across six urban police stations. The objective of these studies was to examine the processing, investigation and prosecution of sexual offences cases and to analyse the possible reasons for high attrition. This paper raises the complexities of calculating attrition as well as the extent to which international experiences and perspectives on rape attrition converge and contrast with South African ones. We also set out to develop some of the insights that we have garnered from our own attrition studies and thereby to alert scholars working in this area to the key practical and theoretical issues that arise in conceptualising and conducting an attrition study.
Author Willem F.M. LuytSource: South African Journal of Criminal Justice 20, pp 182 –205 (2007)More Less
Imprisonment in South Africa has lately been plagued with incidences of sexual assault, male rape and other forms of sexual exploitation. The phenomenon of sexual activities in a single gender environment is not fully and openly acknowledged by prison authorities. For example, authorities denied that illicit sex could happen inside South African prisons, while at the same time, a former male inmate claimed to have had sex with a male prison official. Prison rape reportedly receives little serious attention from prison regimes and legal remedies are rare. Few prison rapists are prosecuted, and most prisons provide little counseling or medical attention to rape victims, or help in preventing such incidents.
Author Esther SteynSource: South African Journal of Criminal Justice 20, pp 206 –219 (2007)More Less
The powers of the prosecution service in South Africa are extensive, particularly when it comes to the exercise of its discretion to institute criminal proceedings, to negotiate plea and sentence agreements and to divert matters from the criminal process. A court cannot prevent a prosecutor from withdrawing a matter or from accepting a specific plea. It is the state that remains dominus litis. However it will be sufficient for the purposes of this paper to focus on how the prosecution service exercises its power when it negotiates a plea and sentence bargain and then to examine and determine the usefulness, fairness and the constitutionality of this process after 1994.
Author Andra Le RouxSource: South African Journal of Criminal Justice 20, pp 220 –242 (2007)More Less
The consumption of intoxicating liquor while driving on a public road is regulated by legislators in many countries and states and the legal history of these legislative attempts are vast. Yet, the appearance of drunk driving cases in our courts, statistics on deaths due to drunk driving and other matters related to drunk driving are still a frequent topic of discussion in most jurisdictions and therefore remain a relevant subject matter in need of further research and debate. This article revisits the topic of drunk driving in South Africa by taking a closer look at the most important case law, relevant statutes and then also the more technical and scientific medical aspects concerning drunk driving. It is the aim and rationale of this article to provide a complete outline on the theme of drunk driving, taking into consideration all the relevant factors to better equip the layman, jurist, medical practitioner or any other professional involved in the administration and management of drunk driving cases.
Author S.S. TerblancheSource: South African Journal of Criminal Justice 20, pp 243 –255 (2007)More Less
When P was only 12 years old she hired two men to kill her grandmother. At 14 years old she was convicted of murder by Swain J in the High Court in Pietermaritzburg. She received a 'postponed sentence' on condition that she complied with the conditions of a sentence of correctional supervision, for a period of three years. The state appealed against this sentence, mainly on the ground of it being too lenient. When the Supreme Court of Appeal ('the SCA') gave its judgment, on 1 December 2005, P was 15-and-a-half years old.
Author Michael CowlingSource: South African Journal of Criminal Justice 20, pp 270 –288 (2007)More Less
Constitutional Court Rule 10(1) confers upon the court a discretion to admit an amicus curiae to any proceedings on the basis that such person has an interest in any matter before the court and that all other parties to the matter have consented. But even where such consent has not been secured a person can be admitted as an amicus on application to the Chief Justice in terms of Rule 10(4). However, the Constitutional Court was at pains to point out in Ex Parte Institute for Security Studies : In Re S v Basson 2006 (2) SACR 350 (CC) that admission as an amicus is not purely dependent upon the consent of the parties or an application to the Chief Justice.
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 20, pp 288 –292 (2007)More Less
In the case of S v Roux 2007 (1) SACR 379 (C), the accused was charged with indecent assault. The complainant was a minor with Downs Syndrome, who could not speak in a manner that was comprehensible to the court. A speech therapist was able to understand his speech however, and the issue was whether the speech therapist could 'interpret' the speech for the court. The magistrate referred the question of whether such evidence would be admissible to the High Court as a special review.
Author Warren FreedmanSource: South African Journal of Criminal Justice 20, pp 292 –301 (2007)More Less
In National Director of Public Prosecutions v Gerber 2007 (1) SA 384 (W), the court held that immovable property could not be forfeited in terms of the Prevention of Organised Crime Act 2 of 1998 where the owner of the immovable property has allowed it to be used in the commission of a crime, but has not committed any wrong him or herself, either intentionally or negligently. This is because, the court held further, the forfeiture of immovable property in such a case would infringe the owner's right not to be arbitrarily deprived of property as guaranteed in s 25(1) of the Constitution of the Republic of South Africa 1996.
Author Salim NakhjavaniSource: South African Journal of Criminal Justice 20, pp 301 –306 (2007)More Less
Consistent with constitutional and international human rights standards safeguarding the right to liberty, it is trite law in South Africa that a summons or written notice should be issued in preference to a warrant of arrest, as the least restrictive means to the desired end, where the suspect does not pose a risk to potential witnesses or the integrity of the criminal process (see N Steytler Constitutional Criminal Procedure (1998) at 52; ss 54(1), 56(1) Criminal Procedure Act 5 of 1977; Tsose v Minister of Justice 1951 3 SA 10 (A) 17; S v More 1993 2 SACR 606 (W) 608E). Should an international court adopt a different approach where an individual is suspected of committing serious international crimes, and securing the presence of the suspect is almost entirely dependent on cooperation from a recalcitrant territorial State?