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- Volume 21, Issue 3, 2008
South African Journal of Criminal Justice - Volume 21, Issue 3, 2008
Volume 21, Issue 3, 2008
Recognition of a parent-child testimonial privilege in South African Criminal Procedure : lessons from the United States of AmericaAuthor Melanie FourieSource: South African Journal of Criminal Justice 21, pp 259 –284 (2008)More Less
In this article it is argued that, while the effective enforcement of the criminal law is essential, policy considerations necessitate the recognition of a parent-child testimonial privilege. In support of this argument the focus falls on the position relating to the recognition of a parent-child testimonial privilege in the United States of America.
Author Murdoch WatneySource: South African Journal of Criminal Justice 21, pp 285 –290 (2008)More Less
The prediction that the fast growing industry of legalised gambling will bring with it challenges of its own, inter alia in the form of problem gamblers (including compulsive gamblers, gambling addicts or pathological gamblers) was proven correct (M Carnelley and S Hoctor 'Pathological gambling as a defence in criminal law' (2001) Obiter 379).
The role of pathological gambling in the sentencing of a person convicted of armed robbery : a comparative discussion of the South African, Canadian and Australian jurisdictions : commentsAuthor Marita CarnellySource: South African Journal of Criminal Justice 21, pp 291 –304 (2008)More Less
The aim of this note is to discuss the sentencing of pathological gamblers that are convicted of the crime of robbery in light of the Supreme Court of Appeal case of S v Nel  SCA 51 (RSA) and to compare it with selected foreign jurisdictions. The note commences with a general overview of the sentencing guidelines for robbery in South Africa, continues with an overview of the judgment and concludes with a discussion of comparable foreign Canadian and Australian judgments.
Author Managay ReddiSource: South African Journal of Criminal Justice 21, pp 305 –306 (2008)More Less
In S v Van Aardt 2008 (1) SACR 336 (E) the appellant, a 49-year-old farmer, appealed against his conviction of murder and the sentence of 12 years' imprisonment that had been imposed on him by the court a quo. This analysis is restricted to the issues concerning the appeal against the conviction only.
Author Shannon HoctorSource: South African Journal of Criminal Justice 21, pp 307 –314 (2008)More Less
The judgment of the Court is commendable, being both practical and in conformity with existing authority. By adopting the particular approach that it does, the judgment runs counter to the criterion first identified by De Wet (Strafreg 3ed (1975) 351), and now supported by Snyman (Criminal Law 5ed (2008) 550-552), such that a dichotomy exists between movable and immovable premises for the purposes of housebreaking liability.
Author Michael CowlingSource: South African Journal of Criminal Justice 21, pp 314 –353 (2008)More Less
A number of interesting points for comment arise from this. The first is that, from the small portion of the trial record produced in the judgment of Pickering J it is quite clear that the magistrate was hopelessly incompetent and did not have a clue as to how to go about conducting a trial. It is disturbing to note that someone of such low calibre can attain the rank and status of a magistrate. Secondly, the accused were undefended and hence required the assistance of the magistrate in conducting their defences. This was not done and instead the magistrate attempted to trap the accused by drawing an adverse inference when they came to testify that they were raising alibi defences for the first time.
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 21, pp 353 –357 (2008)More Less
The crucial fact in this issue was the status of accomplice 'S' - who was not an accused in the case. He had been charged separately, convicted and sentenced at the time of the appellants' trial. The Court held that he was thus not an accused in the trial and that s 197(b) of the Criminal Procedure Act 51 of 1977 had no application. Accordingly, the trial court had been correct to stop the defence's cross-examination at the point it did. The Court held that even if it was wrong on this point, the irregularity was not sufficiently serious as to vitiate the trial, and that the cautionary rule applicable to accomplices had been properly applied. The conviction was thus upheld.
Author Warren FreedmanSource: South African Journal of Criminal Justice 21, pp 357 –369 (2008)More Less
In any event, the Constitutional Court concluded, one of the purposes of an investigator is to hand over as much evidence as can be lawfully obtained to the prosecutor. This is because the role of the prosecutor is not to secure a conviction, but rather to assist the Court in ascertaining the truth (at para ).