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- Volume 24, Issue 2, 2011
South African Journal of Criminal Justice - Volume 24, Issue 2, 2011
Volume 24, Issue 2, 2011
Author Elizabeth Macharia-MokobiSource: South African Journal of Criminal Justice 24, pp 113 –136 (2011)More Less
In 2004, the Botswana legislature introduced section 27(4) into the Penal Code as a means to temper the rigours of minimum mandatory sentences. Section 27(4) allowed presiding officers in criminal trials leeway to depart from prescribed minimum sentences where 'exceptional extenuating circumstances' justifying a lesser sentence were proven to exist. Since then, judges, practitioners and academics have grappled with the meaning of the phrase, 'exceptional extenuating circumstances'. Judicial officers have attached to the phrase a myriad of interpretations which are both tacit and express. This article explores the rationale for minimum mandatory sentences in Botswana and the use of section 27(4) in decided cases. It investigates whether the courts have settled on an acceptable interpretation of the phrase 'exceptional extenuating circumstances' and explores the effects of any lack of uniformity in the use of section 27(4). It then considers similar legislation in South Africa, examining responses to the legislation and the efficacy of the judicial test developed to assist presiding officers in their interpretation of such legislation. Finally, the article proposes a similar test for Botswana tailored for our unique circumstances. It is hoped that this article will trigger conversation on the appropriateness of a judicial test to determine the existence of exceptional extenuating circumstances.
Source: South African Journal of Criminal Justice 24, pp 137 –163 (2011)More Less
The Mangaung One-Stop Child Justice Centre (from hereon 'the centre') is one of the pioneering one-stop centres for child justice in South Africa and has received international recognition for its work. The centre implemented the provisions of the new Child Justice Act 75 of 2008 within the parameters of existing law before the Act came into operation. The centre also piloted the new preliminary inquiry process before it came into operation. In this article, the process followed from arrest to diversion or trial as provided for in the new legislation is described. In addition, the best practices used at the centre in this process are identified. Although the centre is setting an excellent example for dealing with children in conflict with the law, a few challenges exist and a few recommendations are therefore made.
Punishment in the eyes of the Constitutional Court of South Africa : the relationship between punishment and the rights of an offender in the sentencing of primary caregivers of childrenAuthor Mujuzi Jamil DdamuliraSource: South African Journal of Criminal Justice 24, pp 164 –177 (2011)More Less
Punishment has mostly focused on achieving its objectives without considering the impact a sentence will have on the rights of the offender and those under the offender's care. Drawing on the jurisprudence of the Constitutional Court, the author illustrates how the Court, relying on the Constitution of the Republic of South Africa, 1996, has shifted the punishment discourse from one that emphasises the objectives of punishment to one that calls upon sentencing officers to not only emphasise the objectives of punishment, but also to consider the effect the punishment will have on the children if their primary caregiver was sentenced to imprisonment.
Sexual violence in prisons - part 2 : the Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) - its implications for male rape in prisons and the Department of Correctional ServicesSource: South African Journal of Criminal Justice 24, pp 178 –200 (2011)More Less
The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007), referred to here as the Sexual Offences Act (SOA), established in law a gender-neutral definition of rape and this has important implications for male rape in South African prisons. In this article an analysis is presented of the SOA within the prison setting as well as the wider implications for the Department of Correctional Services. The different offences defined under the SOA are contextualised within the prison environment as this environment has implications for the detection and investigation of sexual offences committed there, as well as for the prosecution of perpetrators. Services to victims are also discussed as well as the Sex Offenders Register and the duties of the Department of Correctional Services in this regard. In order for the SOA to prevent and eradicate sexual victimisation in prisons, it will require a concerted effort by the Department of Correctional services to ensure that prisoners feel safe to report such instances and furthermore, to ensure that investigations are done thoroughly, promptly and with the necessary recognition and support for victims.
Author Shannon HoctorSource: South African Journal of Criminal Justice 24, pp 201 –213 (2011)More Less
In Mkhize v S  JOL 26973 (KZP) the court was required to assess the validity of the appellant's defence that in killing the deceased he was acting in self-defence. The facts related to an incident in a bar in the early hours of the morning in Ixopo. The court was required to sift through the differing witness statements to ascertain what actually occurred, where the only independent version of events was that of the barman.
Source: South African Journal of Criminal Justice 24, pp 213 –225 (2011)More Less
Evaluation of divergent expert opinions
The Chief Executive Officer (CEO), of the respondent Close Corporation (CC) in Mutual and Federal Insurance Co Ltd v SMD Telecommunications CC  2 All SA 34 (SCA), sustained orthopaedic injuries in a motor vehicle accident in October 2002.
Author Warren FreedmanSource: South African Journal of Criminal Justice 24, pp 232 –244 (2011)More Less
The doctrine of the separation of powers may be divided into the following principles:
- The principle of trias politica, which simply requires that a formal distinction must be made between the legislative,
- The principle of separation of personnel, which requires that the three organs of state be staffed with different officials and employees.
- The principle of separation of functions, which requires each organ of state to exercise only those powers which are appropriate to its functions.
- The principle of checks and balances, which requires each organ of state to keep a check on the exercise of functions by the others in order to ensure that a balance of power is maintained between all three (see I Currie and J de Waal The New Constitutional and Administrative Law Vol 1 (2001) at 95).