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- Volume 24, Issue 1, 2011
South African Journal of Criminal Justice - Volume 24, Issue 1, 2011
Volume 24, Issue 1, 2011
Author Shannon HoctorSource: South African Journal of Criminal Justice 24, pp VIII –X (2011)More Less
In 1988 the South African Journal of Criminal Justice was born, following the discontinuation of its predecessor, the South African Journal of Criminal Law and Criminology, as a result of a change in publishers. The first issue appeared under the editorial guidance of Professors Milton, Burchell, Lund (all members of the School of Law at the University of Natal at Pietermaritzburg) and Van Rooyen (University of South Africa), with John Milton in the position of editor-in-chief.
Source: South African Journal of Criminal Justice 24, pp 1 –18 (2011)More Less
While the exact extent of sexual victimisation in prisons amongst men is uncertain, it is accepted that this is a universal phenomenon. This article, in two parts, examines sexual violence in South African prisons and emphasises the duty of the state to provide safe custody. It is argued that rape and sexual violence in prisons fall within the ambit of the definition of torture and other ill-treatment, as defined by the United Nations Convention against Torture (UNCAT) and interpreted by the United Nations Special Rapporteur on Torture. The duty of prison officials to prevent sexual victimisation is discussed, reflecting in particular decisions from the United States (US). Particular attention is furthermore paid to the nature of sex in prisons and the relationship between coercion and consent. It is concluded that the duty to provide safe custody and protect the dignity of people deprived of their liberty rests with the state. Further, that this is an active and progressive duty placing the emphasis on managing risks and preventing torture and ill-treatment, as required by Articles 2 and 11 of UNCAT. The state is furthermore not only responsible for its own officials but also for the actions of non-state actors (i.e. other prisoners) when torture and other forms of ill-treatment have been perpetrated.
'Stacking the odds against the accused' : appraising the curial attitude towards amici participation in criminal mattersAuthor Tebello ThabaneSource: South African Journal of Criminal Justice 24, pp 19 –32 (2011)More Less
The law governing amicus curiae participation in criminal matters was recently laid down in S v Basson: Ex Parte Institute for Security Studies which was followed by S v Zuma. It essentially requires the court to be cautious in not allowing amicus curiae participation where this will stack the odds against the accused. Looking at the history, primary role and utility of amici curiae and how the courts in Canada and the US treat their participation particularly in criminal matters, it is suggested that South African courts should not hastily disallow their participation in criminal matters. A court faced with an application by an aspirant amicus curiae must embark on a three-stage enquiry. The first and obvious question is whether amicus curiae will aid it not to err. Secondly, will its participation compromise the parties' fair trial rights? And lastly, are there ways of allowing its participation whilst still respecting the parties' rights? The paper argues for a liberal application of the Basson rule. In order to respect fair trial rights, an amicus curiae can be allowed to participate only if the application is made timeously - before the defence positions itself. It can also be limited to written submissions to avoid delays and costs. As far as equality of arms is concerned, a pro-prosecution amicus can be balanced by a pro-accused amicus thus avoiding stacking the odds against the accused.
The requirements for criminal capacity in section 11(1) of the new Child Justice Act, 2008 : a step in the wrong direction? : commentAuthor Shelley WalkerSource: South African Journal of Criminal Justice 24, pp 33 –41 (2011)More Less
On 1 April 2010, the long-anticipated Child Justice Act 75 of 2008 ('the Act'), came into effect. Amongst other things, the Act raises the age below which children are irrebuttably presumed to lack criminal capacity from seven to ten years, prescribes the requirements for proving criminal capacity in children aged ten years and over but under fourteen years and provides for a number of procedural steps and mechanisms aimed at diverting children in this age group, as well as other child offenders, away from the formal criminal justice system to a less formal and more age-appropriate system of correction.
Should legal professional privilege be limited to exclude in-house lawyers under South African criminal law? : commentAuthor Wium De VilliersSource: South African Journal of Criminal Justice 24, pp 42 –51 (2011)More Less
Many jurisdictions including the member states of the European Union, the United States of America, Canada, England and South Africa provide for legal professional privilege. These jurisdictions share a common rationale with regard to the protection of communications between lawyer and client. The rationale recognises the nature of the legal profession and its contribution to the rule of law and applies to both criminal and civil law.
Author Louise JordaanSource: South African Journal of Criminal Justice 24, pp 52 –61 (2011)More Less
In S v Dladla 2010 JDR 1021 (KZP) the court heard an appeal against a conviction for murder on the basis of the doctrine of common purpose. The appellant and two others had agreed to commit robbery at a municipality in KwaZulu-Natal, in the town of Harding. They entered the premises of the municipality and when they aroused suspicion the deceased, who was the chief protection officer of the municipality, began to search them individually. One of the assailants then removed the deceased's firearm from his person and shot him twice in the shoulder with his (the deceased's) own weapon. He then fell to the ground and the assailants took his motor vehicle and drove away with it. The deceased died as a result of the gunshot wound.
Author Managay ReddiSource: South African Journal of Criminal Justice 24, pp 62 –71 (2011)More Less
Following the Constitutional Court's decision in Shabalala v Attorney-General of Transvaal 1995 (2) SACR 761 (CC) [1996 (1) SA 725], the 'blanket' docket privilege that existed in South African law, which denied accused persons access to documents that formed part of the police docket, was found to be in conflict with the fair trial guarantee contained in the Bill of Rights. Consequently, docket privilege no longer applies to documents that are incriminating, exculpatory or prima facie likely to assist an accused in his or her defence (at para 72). However, the exercise of the protection of the right to a fair trial entitles an accused to not just witness statements or exhibits but also to all documents that may have a bearing on the accused's ability to 'adduce and challenge evidence' (at para 57).
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 24, pp 72 –85 (2011)More Less
In S v Dladla 2011 (1) SACR 80 (KZP) the appellant was a nurse employed at a mental institution. He was charged with assault with intent to do grievous bodily harm, allegedly having hit, kicked and attempted to strangle the complainant patient who refused to take the medication the appellant had attempted to administer. The complainant was a diagnosed schizophrenic, with other medical illnesses too (at para 3), who had been institutionalised for five years at the time of the alleged incident (at para 22).
Author Warren FreedmanSource: South African Journal of Criminal Justice 24, pp 86 –105 (2011)More Less
Section 1 of the Constitution provides that the Republic of South Africa is one sovereign democratic state founded on, amongst others, the principle of 'the rule of law'. This principle has been considered by the Constitutional Court on a number of occasions. In these cases the Court has held, inter alia, that neither the legislature nor the executive may exercise the powers that have been conferred upon them in a manner that is irrational (see Pharmaceutical Manufactures: Ex Parte Application of the President of the RSA 2000 (2) SA 674 (CC)).
Author Max Du PlessisSource: South African Journal of Criminal Justice 24, pp 106 –112 (2011)More Less
On Saturday evening of 26 February 2011 the United Nations (UN) Security Council unanimously passed Resolution 1970 (2011), referring the 'situation' in Libya to the International Criminal Court (ICC). The resolution was part of a robust set of Security Council measures directed at the Libyan regime, including a travel ban and asset freezes for Colonel Ghaddafi and his associates, and an arms embargo. It is the first concrete action by the Council in respect of the events that began earlier that month, as increasing reports of widespread attacks on civilians in Libya confirm the lengths to which Ghadaffi will go to cling to power. It is also fitting that Ghadaffi - who has recently been central to undermining the ICC through his political influence in the African Union - should now find his regime's crimes referred to the Court.