- A-Z Publications
- South African Journal of Criminal Justice
- Previous Issues
- Volume 23, Issue 3, 2010
South African Journal of Criminal Justice - Volume 23, Issue 3, 2010
Volume 23, Issue 3, 2010
Recognising the centrality of disclosure to the realisation of equality of arms in criminal proceedings in BotswanaAuthor Rowland J.V. ColeSource: South African Journal of Criminal Justice 23, pp 327 –350 (2010)More Less
Due to its powers and duties to investigate and prosecute crime, the State remains the dominant party in the criminal justice system. It is a given fact, therefore, that the accused does not stand on equal footing with the prosecution in criminal proceedings. Whereas the Constitution of Botswana guarantees procedural rights to accused persons, the accused remains potentially disadvantaged in the country's adversarial system. A sure way of guaranteeing meaningful participation by the accused in the criminal process is the recognition of the principle of equality of arms. Docket disclosure is however a fundamental instrument in maintaining some semblance of equality between the prosecution and the accused in criminal proceedings. By engaging in a liberal interpretation of the Constitution, the courts of Botswana have been able to enforce docket disclosure. The willingness of the courts to grant the accused access to police dockets goes a long way towards fostering equality of arms. Even though the principle of equality of arms has no formal recognition in Botswana, the courts, by embracing disclosure, have given implied effect to the principle. However, since the principle is an essential element of a fair trial, perhaps the courts should consider its formal application.
Author Andra Le Roux-KempSource: South African Journal of Criminal Justice 23, pp 351 –370 (2010)More Less
This article will focus on witness anonymity as a tool to encourage the reporting of criminal activities and criminal victimisation by victims and other witnesses, and as a mechanism to ensure that witnesses in criminal proceedings are duly protected. This will be juxtaposed against an accused's right to a fair trial, in terms of s 35(3) of the Constitution of the Republic of South Africa, 1996 and relevant provisions of the Criminal Procedure Act, as well as the foundational principle of the criminal justice system that an accused has a right to confront witnesses testifying against him or her and that such testimony should be given in an open court and in the presence of the accused. Arguments in favour of witness anonymity, primarily based on the contention that the right of confrontation is not absolute, will be considered together with examples from other jurisdictions and arguments asserting that the curtailing of the right of confrontation to accommodate true witness anonymity are too extreme and inconceivable in terms of an accused's right to a fair trial.
Source: South African Journal of Criminal Justice 23, pp 371 –384 (2010)More Less
The article looks at different aspects of the chain of custody, such as why it is necessary, in which circumstances there a need for proving an unbroken chain of custody, what should be proven by the prosecution to show an intact chain of evidence and what should the legal result be where proper proof is omitted, or section 220 admissions improperly or ambiguously made by a legal representative. This article specifically focuses on the proof of the chain of custody where the prosecution wants to rely upon the real evidence as the basis for expert testimony by using DNA analysis. The question discussed is whether a broken chain of evidence results in the inadmissibility of the evidence, or merely in diminishing the probative value of that evidence. The second part of the article uses the case S v Issacs 2007 JDR 1299 (W), as an example for an argument relating to the different aspects of the proof of a chain of evidence. The article concludes that the time might have come to revise the principle that an accused is bound by admissions incorrectly made by legal representatives.
Author Vinesh BasdeoSource: South African Journal of Criminal Justice 23, pp 385 –400 (2010)More Less
There is a dark underside to the ethics of policing which is all too seldom discussed or exposed. Corruption appears to be rife in the various sectors of the Criminal Justice System, more specifically the South African Police Service. We only have to consult the media to determine the level of dishonesty and corruption in the South African Police Service (SAPS). Police corruption has become very topical following the conviction of former South African Police National Commissioner, Jackie Selebi, this year. Police corruption is however not limited to South Africa. It is an evil that is encountered throughout the world. It is accepted that police corruption is an occupational hazard. The more police corruption becomes the norm, the more policing resources are diverted from tackling the monster 'crime', which threatens to cripple our new found democracy. In the fight against police corruption the Police themselves have a primordial role to play. This article will examine the concept 'police corruption', the legislative framework pertaining to corruption, the common causes and forms of corruption that exist in the South African Police Service, as well as what is known about the state of corruption in the South African Police Service, rooting it in local and international literature on police corruption. This article will further emphasise the critical importance of changing the police organisational culture to combat corruption. This is based on the premise that punitive and reactive approaches, focusing primarily on investigations and prosecutions, are not in themselves adequate measures to tackle the endemic police corruption curse. Finally, this article will propose recommendations and preventative measures based on relevant legislative, local and international anti-corruption instruments.
Source: South African Journal of Criminal Justice 23, pp 401 –407 (2010)More Less
In their textbook on criminal procedure Bekker et al point out that a person may be arrested only for the purpose of bringing him or her before a court of law to face due prosecution. If a person is arrested for any other purpose, that arrest will be unlawful (see Bekker et al Criminal Procedure Handbook (2007) at 102).
Author Shannon HoctorSource: South African Journal of Criminal Justice 23, pp 408 –413 (2010)More Less
In S v Msomi 2010 (2) SACR 173 (KZP) the court heard an appeal against a rape conviction. The appellant and a certain Mkhize forced the 15-year-old complainant into their taxi, and took her to a secluded place, where Mkhize tried to rape her. When she resisted and tried to escape, the appellant recaptured her and took her back to Mkhize, who violently raped her. The appellant sat in the taxi while the rape was taking place. The court, having accepted the veracity of the complainant's version of events, was required to assess whether the appellant's conduct constituted accomplice liability in respect of the crime of rape.
Source: South African Journal of Criminal Justice 23, pp 414 –426 (2010)More Less
The cases discussed in this issue deal inter alia with the admissibility of evidence obtained by way of entrapment; when testimony should be heard under oath, affirmation or under caution to speak the truth; how to deal with false evidence given by an accused and how to assess the evidence of a single complainant in rape cases.
Author Stephan TerblancheSource: South African Journal of Criminal Justice 23, pp 427 –438 (2010)More Less
The judgment in S v RO 2010 (2) SACR 248 (SCA) is important as far as sentencing is concerned, despite its deceptive brevity. The majority judgment by Heher JA touches on several aspects of sentencing and it is full of phrases loaded with sentencing principle. The case involved charges of rape and indecent assault committed by two brothers. The victims were a 4-year-old girl and 6-year-old boy (see below Rape for a discussion of the facts).
Author Marita CarnellySource: South African Journal of Criminal Justice 23, pp 439 –453 (2010)More Less
The aims of the South African gambling regulatory statutes are clear: limited legalization, coupled with strict regulation and policing to channel the existing gambling demand towards the licensed and taxed operators with proven integrity at company, employee and operational level (National Gambling Act 7 of 2004, preamble). Furthermore, the licensees are generally required to create new infrastructure, provide employment opportunities for local persons as well and meet certain Black Economic Empowerment (BEE) standards. Simultaneously, vulnerable groups must be managed: minors must be prohibited from gambling and problem gamblers assisted through various programmes (ibid).