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- South African Journal of Criminal Justice
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- Volume 21, Issue 1, 2008
South African Journal of Criminal Justice - Volume 21, Issue 1, 2008
Volume 21, Issue 1, 2008
The prospect of rehabilitation as a 'substantial and compelling' circumstance to avoid imposing life imprisonment in South Africa : a comment on S v NkomoAuthor Jamil Ddamulira MujuziSource: South African Journal of Criminal Justice 21, pp 1 –21 (2008)More Less
When the death penalty was declared unconstitutional in South Africa, the government enacted the Criminal Law Amendment Act in 1997 which, amongst other things, stipulated that a person convicted of some of the scheduled offences was to be sentenced to life imprisonment unless there were substantial and compelling circumstances. Many courts interpreted substantial and compelling circumstances in many different, and at times confusing, ways. The Supreme Court of Appeal clarified the meaning of substantial and compelling circumstance in the well-known Malgas case in which it held, inter alia, that courts should not lightly depart from imposing severe sentences, since the legislature had singled out the scheduled offences to be punished severely because they are serious offences. One of the criteria the Court set was that courts should not rely on 'speculative hypotheses favourable to the offender' to avoid imposing life sentences. However, recently, in the Nkomo case, the Court held that the prospect of rehabilitation of the offender is a substantial and compelling circumstance to justify the imposition of a lesser sentence. This article analyses rehabilitation as an objective of punishment and highlights the likely challenges associated with the approach the Court seems to be adopting.
Source: South African Journal of Criminal Justice 21, pp 22 –62 (2008)More Less
DNA evidence differs from other forensic evidence in that it developed in the scientific arena and not with the exclusive objective of being used for identification and detection of criminal perpetrators. In order to understand the forensic significance of DNA evidence in South Africa today, this article explains different aspects of the use of DNA in criminal cases. The article explains the nature of DNA evidence and genes and their relationship to individuality. The technology of DNA analysis and its application to DNA profiling is described. The power of DNA as a forensic tool is evaluated by looking at the laboratory practices within the SAPS Biology laboratories. Interpretation of the data generated is discussed as well as potential future developments of the forensic use of DNA.
Author Thea IllseySource: South African Journal of Criminal Justice 21, pp 63 –80 (2008)More Less
Two noteworthy events have recently added momentum to the debate on the law of sexual assault in South Africa. The first is the commencement, on 1 December 007, of the Criminal Law (Sexual Offences and Related Matters) Amendment Act ('the new Act'). The Act is based on the South African Law Reform Commission's proposals and, once operative, will bring about vast changes to the legal framework regulating substantive as well as procedural aspects of sexual assault in South Africa.
An elaboration of the themes and contentions in Mmatshilo Motsei's book The kanga and the kangaroo court, reflections on the rape trial of Jacob ZumaAuthor Bryant GreenbaumSource: South African Journal of Criminal Justice 21, pp 81 –98 (2008)More Less
It is important to highlight discourses from black gender activists and researchers when dissecting the issue of sexual violence in South Africa, as most victims of sexual crimes are black women and children who also struggle with subtle race, class and cultural obstacles. Unfortunately, at the present time, the voices of black women activists and researchers, including Mmatshilo Motsei, are considered superfluous in legislative debates surrounding sexual violence and therefore important race, class and cultural influences are not fully addressed when sexual offences Bills come before Parliament or when sexual violence cases are heard by magistrates and judges. Using Motsei's book as a guide, this article focuses on the cultural influences that are not being properly addressed in Parliament and in the criminal justice system and it suggests possible legislative reforms that can assist prosecutors and magistrates when they confront official customary law and living customary law in evidentiary, procedural and sentencing matters.
Author Warren FreedmanSource: South African Journal of Criminal Justice 21, pp 134 –149 (2008)More Less
The procedure governing criminal appeals from the magistrates' courts is set out in sections 309, 309A, 309B, 309C and 309D of the Criminal Procedure Act 1977 (the 'CPA'). Over the past ten years, this procedure has been considered by the Constitutional Court on three separate occasions: first in S v Ntuli 1996 (1) SACR 94 (CC); second in S v Steyn 2001 (1) SACR 25 (CC); and most recently in Shinga v The State (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell 2007 (2) SACR 28 (CC)