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- Volume 21, Issue 2, 2008
South African Journal of Criminal Justice - Volume 21, Issue 2, 2008
Volume 21, Issue 2, 2008
The National Prosecuting Authority's policy and directives relating to post-Truth and Reconciliation Commission prosecutionsSource: South African Journal of Criminal Justice 21, pp 151 –167 (2008)More Less
The National Prosecuting Authority's policy and directives relating to post-Truth and Reconciliation Commission prosecutions have been the topic of much recent debate. The process, followed by the amendment of the Prosecution Policy and the consequent formulation of the policy and directives, neither made provision for public participation nor for the input of victims. Furthermore, standard arrangements in the normal execution of justice and the prosecuting mandate in terms of empowering legislation were incorporated into the policy and directives which includes plea and sentence agreements in terms of s 105A of the Criminal Procedure Act 51 of 1977. This section was employed to successfully secure conviction of five accused in the Vlok case. This case was one of the first prosecutions in terms of the policy and directives since the Truth and Reconciliation Commission has completed its work. Due to the specific nature and application of the policy and directives as well as s 105A, stronger emphasis is placed on victim participation by affording those ultimately affected by its application the opportunity to participate.
Author B. NaudeSource: South African Journal of Criminal Justice 21, pp 168 –185 (2008)More Less
In 2004 the Supreme Court of Appeal adopted the doctrine of inevitable discovery in the case of S v Pillay. In terms of this doctrine unconstitutionally obtained real evidence that would inevitably have been discovered by alternative means should not be excluded. It is submitted that it was wrong and unnecessary to allow this speculative and arbitrary doctrine to gain entrance into our law. Although an application of this doctrine might be possible in limited circumstances, it is essential to place this doctrine in its proper context. If this is not done, the potential is created to oversee serious violations of the Bill of Rights by effectively sidestepping the exclusionary rule. It should not be forgotten that the exclusionary rule embodied in s 35(5) of the Constitution is mainly there to prevent or deter the violation of constitutionally guaranteed rights. Even if exclusion is not a perfect remedy, it is the optimal one to ensure police respect for constitutional rights.
Author David MasiloaneSource: South African Journal of Criminal Justice 21, pp 186 –199 (2008)More Less
Lack of managerial accountability to enforce internal organisational policies and procedures is creating a new breed of police officers who are either unaware of these critical rules or do not mind the repercussions of flaunting them. The ripple effect of this ignorance or flaunting of the rules is the delivery of substandard service to the community, which in the long term crystallises into police incompetence. Further, the failure of management to analyse complaints and use them as a source of intelligence, deprives them the ability to develop proper control and monitoring systems that could enhance the quality of the service rendered. This could result in numerous repetitive complaints against the same members to an extent that it may discourage people from laying complaints against the police, thus making the number of complaints against the police an inaccurate reflection of the public's dissatisfaction with police services.
Source: South African Journal of Criminal Justice 21, pp 200 –207 (2008)More Less
In S v Reabow 2007 (2) SACR 292 (E) (also discussed by Michael Cowling in 'Recent cases : Criminal procedure' (2008) 21 (1) SACJ 104), the appellant had been convicted in the magistrate's court on a charge of assault with intent to do grievous bodily harm. The facts giving rise to the conviction were as follows : The complainant, wallet in hand, had been running to catch a bus when the appellant, an off-duty traffic officer armed with a baton, either hit the complainant with the baton or thrust it into his path causing injury to the complainant's face. The injury was serious enough to require stitches. That the complainant was totally blameless of any transgression when he was assaulted was not disputed.
Author Shannon HoctorSource: South African Journal of Criminal Justice 21, pp 207 –213 (2008)More Less
The three appellants in S v Pakane and others 2008 (1) SACR 518 (SCA) were police officers who had been convicted on charges of murder (the second appellant), being an accessory after the fact to murder (the first and third appellants), and defeating the ends of justice (the second appellant). A synopsis of the facts (along with a discussion of the appellants' liability in relation to the murder charge) can be found in Professor Reddi's discussion of this case supra, and will thus not be repeated. With regard to the charge of defeating the course of justice, the Supreme Court of Appeal (per Maya JA) confirmed the correctness of the approach of the court a quo in holding that to convict the first and third appellants of defeating the course of justice would amount to a duplication of convictions, as their convictions as accessories after the fact to murder were based on the same facts (at para ).
Author Michael CowlingSource: South African Journal of Criminal Justice 21, pp 213 –228 (2008)More Less
Appeals are an extremely important part of any judicial process - both civil and criminal. And, as there are perceptions about the slow pace at which the wheels of justice grind, it is vital to ensure that any parties involved in an appeal process should pursue such appeal timeously. This process could otherwise end up as another delaying tactic. It is for this reason that Supreme Court of Appeal Rule 8 provides that an appellant must, within 3 months of the lodging of the notice of appeal, lodge with the Registrar 6 copies of the record of proceedings in the court a quo. Rule 8(3) stipulates that the appeal shall lapse where the appellant fails to do this.
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 21, pp 229 –233 (2008)More Less
In the case of S v K 2008 (1) SACR 84 (C), the accused was convicted in the court a quo on a charge of having raped his 14-year-old stepdaughter. The matter was referred to the High Court for sentencing, and the High Court became concerned at the scarcity of the evidence upon which the appellant had been convicted. Yekiso J communicated his concerns to the magistrate. His concerns were that expert medical evidence did not reveal any evidence consistent with the complainant's allegations; that one piece of potentially incriminating real evidence had been destroyed (a sanitary towel used immediately after the alleged rape); and other important evidence was simply not tendered at the trial (bedspreads on two beds on which the rapes had taken place). The prosecution gave no explanation for the absence of the real evidence.
Author Warren FreedmanSource: South African Journal of Criminal Justice 21, pp 233 –252 (2008)More Less
In Midi Television (Pty) Ltd t / a E-TV v Director of Public Prosecutions (Western Cape) 2007 (2) SACR 493 (SCA), the appellants (E-TV) produced a documentary relating to the brutal murder of a six-month old child in Cape Town. When the respondent (DPP) learned that this documentary was about to be broadcast, his representatives asked E-TV to give them an opportunity to view it so that they could satisfy themselves that the broadcast would not prejudice the upcoming trial of those arrested in connection with the murder. E-TV refused to do so.
Author Salim NakhjavaniSource: South African Journal of Criminal Justice 21, pp 252 –258 (2008)More Less
Proceedings in the first trial before the International Criminal Court have been stayed on grounds of non-disclosure of exculpatory evidence by the Office of the Prosecutor, in circumstances described by the Trial Chamber as a 'wholesale and serious abuse'. On 13 June 2008, the judges of Trial Chamber I - Sir Adrian Fulford (United Kingdom), Elizabeth Odio Benito (Costa Rica) and René Blattmann (Bolivia) - rendered their 44-page Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008 ('the Decision').