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- Volume 23, Issue 1, 2010
South African Journal of Criminal Justice - Volume 23, Issue 1, 2010
Volume 23, Issue 1, 2010
The right to a fair trial in subsequent criminal proceedings : how the Constitutional Court took matters into its own hands in Shinga v The StateSource: South African Journal of Criminal Justice 23, pp 1 –21 (2010)More Less
For the third time since 1996, the Constitutional Court had to decide in 2007 on the constitutionality of provisions in the Criminal Procedure Act 51 of 1977 relating to applications for leave to appeal, petitions, and appeals from criminal proceedings in the magistrates' courts. After examining the history of criminal appeals from the magistrates' courts by considering post-1994 case law and related legislative amendments, the Constitutional Court took matters into its own hands, and amended the Act. In its judgment, the court made it clear that all subsequent criminal proceedings, for example appeals and reviews, should meet the requirements of a fair trial as set out in s 35(3) of the Constitution of the Republic of South Africa, 1996. Although the procedures of applying for leave to appeal by way of an application or a petition have undergone serious judicial and legislative scrutiny over the past few years, the Constitutional Court stated that these procedures are necessary in order to identify and prevent unmeritorious appeals. The Constitutional Court ordered that in future the full record of the court a quo be sent to the High Court when a convicted person files a petition, that two judges consider the petition (who may also order that the petition be argued before them) and that, if leave to appeal is granted, the appeal be heard in an open court on oral argument. The order was made with immediate effect.
Constitutional exclusion under s 35(5) of the Constitution : should an accused bear a 'threshold burden' of proving that his or her constitutional right has been infringed?Author Dane AllySource: South African Journal of Criminal Justice 23, pp 22 –38 (2010)More Less
This article examines the incidence of a threshold burden of proof in admissibility challenges based on s 35(5) of the South African Constitution. The following question is asked: Should the accused bear the onus of showing that his or her fundamental right has been infringed during the evidence gathering process, or should the prosecution bear the burden of proving that the disputed evidence has been obtained in a constitutional manner? South African case law and the opinions of scholarly writers are incompatible on this issue. This article explores the conflicting lines of reasoning followed by the Supreme Court of Appeal in Director of Public Prosecutions, Transvaal v Viljoen, and the full bench decision of the Transvaal Provincial Division (now Northern Gauteng) in S v Mgcina. The author concludes that, having regard to a contextual interpretation of s 35(5) and the textual differences between s 24(2) of the Canadian Charter and s 35(5), the accused should not be saddled with a threshold burden. The prosecution should therefore bear the onus of showing that the evidence has been obtained in a constitutional manner, once the accused alleges that it has been obtained in violation of his or her rights.
Author David MasiloaneSource: South African Journal of Criminal Justice 23, pp 39 –54 (2010)More Less
Most illegal immigrants in South Africa are people who embarked on a dangerous journey of crossing the border, running away from perilous political and economic conditions with the hope of improving their situation across the borders. The successful crossing of the border turns these people into violators of immigration laws in the perceived country of survival. Despite having to continuously evade the police because of their illegal status, they also tend to be victims of xenophobia, crime and labour exploitation. The presence of illegal immigrants in the country cannot be divorced from policing. First, the police have an obligation to arrest and deport those who are in the country illegally, although deportation is perceived by many people to be a costly and ineffective exercise because illegal immigrants find their way back to South Africa. Secondly, the vulnerability of illegal immigrants to crime accentuates their need for police protection, protection they do not initiate because it will result in their deportation. This paper deals with the difficulty encountered in policing these illegal immigrants. It considers the obligation of protecting the country and its citizenry against the influx of illegal immigrants, and evidence reveals that some of them are involved in criminal activities. Nonetheless, illegal immigrants need protection against the violation of their constitutional rights. The discussion will be based in the broader context of indicating the shortfalls of using the police to solve the political and economic crises.
Transformation in the South African Police Service : the implementation of affirmative action and employment equity in SAPSAuthor Moses MonteshSource: South African Journal of Criminal Justice 23, pp 55 –77 (2010)More Less
The real transformation of the South African Police Service by the country's first democratically elected government started in 1994. At that time the police were confronted with a serious legitimacy crisis among a majority of South Africans as a consequence of many decades of brutal and racist apartheid policing practices. It was not until 1997 that the South African Police Service drafted what it called the 'Credo for Affirmative Action'. This document stated that 'in order to manifest commitment to this policy and constitutional responsibility, the South African Police Service shall strive to reflect the demographics of the country in all occupational classes and at all levels of the organisation at national and provincial levels, in terms of race and gender'. At this point the goals set for the organisation included ensuring that middle and senior management levels comprised of at least 50 percent black people and 30 percent women by the year 2000. In October 2001, the organisation developed and released a national employment equity plan intensifying the process of transformation. By 2005, the South African Police Service looked significantly different in terms of its racial profile.
Author Freido Johan Willem HerbigSource: South African Journal of Criminal Justice 23, pp 78 –97 (2010)More Less
Forensic psychophysiology (polygraphy), or more ascetically stated, lie detection, has captivated humankind since the earliest of times. In due course crude mechanisms employed to determine veracity have not only evolved and been refined, but the pursuit of truthfulness has become more important to a post-modern society plagued by pervasive crime, corruption and impropriety. Seldom, if ever, has the quest for candor's interface with the criminological discipline, and / or its significance as a criminological support mechanism within a containment approach to addressing the burgeoning crime quandary, specifically been canvassed in South Africa. This paper examines the relevance of polygraphy not only as a regimen for determining truth and deception, but also in terms of current and, perhaps more importantly, potential application and utility thereof within the South African criminal justice / criminological and victimological realm. The article endeavours to identify the extent (or lack thereof) to which the polygraph deliberately or inadvertently aligns itself with, and / or can be utilised for, the pursuit of a criminal justice / criminological agenda by, amongst others, contrasting the position and needs in South Africa with the United States, historically one of the principal users of polygraph worldwide. Although this paper alludes to the existence and further development of a mutually beneficial relationship between criminal justice / criminology and polygraphy, the affiliation should by no means be construed as representing a panacea and / or subjugation of inherent limitations within the realm of both fields.
Therapeutic jurisprudence : judicial officers and the victim's welfare - S v M 2007 (2) SACR 60 (W) : commentsAuthor Annette Van der MerweSource: South African Journal of Criminal Justice 23, pp 98 –106 (2010)More Less
South African judicial officers have adopted, but only to an extent, the concept of restorative justice (A Skelton and M Batley 'Restorative justice: a contemporary South African review' 2008 Acta Criminologica 42, 49; cf SS Terblanche Guide to sentencing in South Africa (2007) 177 and S v Maluleke 2008 (1) SACR 49 (T)). This aims to hold offenders accountable in a meaningful way while addressing the needs of victims and the larger community.
Human rights and the retention of DNA samples, profiles and fingerprints : S and Marper v United Kingdom : commentsSource: South African Journal of Criminal Justice 23, pp 107 –121 (2010)More Less
The judgment by the European Court of Human Rights, S and Marper v United Kingdom  ECtHR 30562/04 [Grand Chamber] (4 December 2008), discussed below, has been described in the accompanying Amicus Curiae brief by Privacy International as 'one of the most important privacy developments in recent years. The outcome of this case will determine the course of policy not just in the UK, but also across Europe and around the world.'
Author Shannon HoctorSource: South African Journal of Criminal Justice 23, pp 122 –131 (2010)More Less
The court noted the need to engage in inferential reasoning in establishing intention, and cited the cautionary injunctions in the cases of S v Sigwahla 1967 (4) SA 566 (A) and S v Lungile 1999 (2) SACR 597 (SCA) in this regard (at paras 6-8). Given the careful steps taken by the appellants to avoid detection, the court held that it could be inferred that the appellants did not foresee the possibility of detection (at para 14).
Author Michael CowlingSource: South African Journal of Criminal Justice 23, pp 132 –149 (2010)More Less
Section 50(1) of the Prevention of Organised Crime Act 121 of 1998 requires the forfeiture of any property that is on instrumentality of an offence. The term 'instrumentality' is broadly defined to embrace any property or article by means of which an offence is committed. In NDPP v Bosch 2009 (2) SACR 547 (KZD) the court made some interesting comments on the forfeiture process contained in POCA.
Source: South African Journal of Criminal Justice 23, pp 149 –159 (2010)More Less
The rationale for the rule excluding hearsay evidence in court is based on the fact that statements that are not to the advantage of other parties should be made under circumstances where such assertions can be tested. The usual safeguard against the risks of hearsay is to have statements in court to be tendered under oath; in open court and subject to cross-examination.
Author Stephan TerblancheSource: South African Journal of Criminal Justice 23, pp 159 –176 (2010)More Less
The role of diminished responsibility, as a factor that reduces culpability, was addressed in a couple of recent judgments. In S v Mnisi 2009 (2) SACR 227 (SCA) the court stressed that, in contrast to temporary non-pathological criminal incapacity, diminished responsibility does not exclude culpability, but only reduces such culpability. This reduced culpability should be reflected in a reduced sentence (at para 4). Reduced culpability is established based on all the evidence in a case, even the accused's say so.
Author Jonathan BurchellSource: South African Journal of Criminal Justice 23, pp 177 –181 (2010)More Less
The Prevention of Organised Crime Act 121 of 1998 (POCA), which came into force on 21 January 1999, is just over ten years' old. Judicial interpretation, particularly of its asset forfeiture provisions, has come to the forefront in all South African courts. The provisions of POCA and its partner, the Financial Intelligence Centre Act 38 of 2001 (FICA), have generated journal articles, chapters in books and monographs.