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- Volume 24, Issue 3, 2011
South African Journal of Criminal Justice - Volume 24, Issue 3, 2011
Volume 24, Issue 3, 2011
'Bought at a price' : trafficking in human beings - a brief study of the law in South Africa and the United StatesAuthor Darren Cavell SubramanienSource: South African Journal of Criminal Justice 24, pp 245 –265 (2011)More Less
The crime of trafficking has become a global phenomenon. The international trafficking of human beings is an extremely profitable business. In the 2010 Trafficking in Persons Report it was estimated that there are approximately 12.3 million people around the world, including adults and children, who are victims of either forced labour, bonded labour or forced prostitution. The prevalence of trafficking victims around the world is 1.8 per 1000 inhabitants. Human trafficking for the purpose of sexual exploitation is most prevalent from the economically less advantageous regions to the more developed countries. South Africa is regarded as the main destination for trafficked people in Africa. In many cases, women and children are lured to South Africa with promises of jobs, education or marriage, only to be sold and sexually exploited in the country's major urban centres, small towns and more rural environments. South Africa has signed and ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Despite this, South Africa has no comprehensive human trafficking legislation. With this in mind the writer attempts to highlight the attempts made by South Africa to deal with the crime of human trafficking, the effectiveness of current legislation in dealing with the crime and the lessons that can be learnt from the United States of America (USA) and their anti-trafficking legislation.
An analysis of the wording, interpretation and development of the provisions dealing with the use of lethal force in effecting an arrest in South African criminal procedureSource: South African Journal of Criminal Justice 24, pp 266 –282 (2011)More Less
Since the first introduction of a provision dealing with the use of (lethal) force in effecting an arrest in South African criminal procedure in 1917, the provisions have been amended a total of four times with a possible fifth amendment soon to be passed in terms of the Criminal Procedure Amendment Bill B39 - 2010. In this article the wording, interpretation and development of the provisions from its common-law roots and the first provision in the 1917 Act to the latest proposed amendment will be analysed and compared.
Source: South African Journal of Criminal Justice 24, pp 283 –308 (2011)More Less
This article examines child pornography as it is currently prohibited in South Africa. It considers the definition of child pornography and its development through a number of legislative changes. The statutory prohibition of child pornography is complicated by the fact that it is defined and criminalised in both the Films and Publications Act 65 of 1996 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. From closer scrutiny it is evident that the definitions and crimes differ in each Act. Further complications include clearly incorrect legislation. Some international examples are used to illustrate how these complications could be avoided.
Source: South African Journal of Criminal Justice 24, pp 309 –332 (2011)More Less
'If the criminal offender can expend the proceeds of crime without limitation to challenge the forfeiture action and with the knowledge that when the case is lost, whatever is left will be forfeited to the state, the offender has no incentive to do anything other than to fight the forfeiture until all of the restrained funds have been exhausted'
The Prevention of Organised Crime Act 121 of 1998 (POCA) aims to dislodge the fruits of criminal activity from the hands of criminals and their cohorts thus endeavouring to take the profit out of crime. Simultaneously however, certain provisions of POCA allow alleged criminals to access forfeited assets in order to cover their legal expenses. These provisions have to be reconciled with, on the one hand, the specific restitutionary rights of victims of crime and, on the other hand, the general interests of the community in ensuring that crime should not pay. This article attempts to assess critically how these divergent interests have been weighed and balanced by the courts. This article shows that - by means of their asset forfeiture jurisprudence - South African (SA) courts have created distinct criteria that are to be taken into account in order to reconcile these potentially conflicting interests. This jurisprudence is analysed and the criteria that assist in resolving the apparent conflict are expounded.
The admissibility of the Dräger Alcotest 7110 MK 111 breathalyser - results in the South African courts : notesSource: South African Journal of Criminal Justice 24, pp 333 –346 (2011)More Less
Driving drunk is a scourge that causes unnecessary loss of life, medical expenses for the individual and the state as well as damage to property. Research by the Medical Research Council shows that 59% of drivers killed in road accidents were under the influence of alcohol (Road Traffic Management Corporation Road Traffic Report (2009) 49) and that fatal accidents cost South Africa R52 billion in 2007 alone (Hendricks at para  fn 1). There is a need to control the use of alcohol before driving as it is a threat to public safety (J Van der Westhuizen Forensic Criminalistics (1993) at 149). As such, there is a duty on the state to address the problem of drunk driving in an effective, unambiguous and constitutionally lawful manner. The approach in South Africa is to target the problem on many levels, both preventative and punitive, inter alia through provision of information and education (Arrive Alive campaign); and the prosecution of potential offenders. It is on the last-mentioned policy that this note is focused.
Sentencing an accused whose legal representative fails to participate meaningfully in the process : a discussion of S v Samuels 2011 (1) SACR 9 (SCA) : notesSource: South African Journal of Criminal Justice 24, pp 347 –355 (2011)More Less
It is trite that in order to exercise a proper sentencing discretion, the presiding officer must have sufficient relevant information. In the case of S v Samuels 2011 (1) SACR 9 (SCA) the Supreme Court of Appeal (SCA) considered whether the presiding officer has a duty to investigate mitigating factors where the accused's legal representative neglects to place such information before the court.
Author Louise JordaanSource: South African Journal of Criminal Justice 24, pp 356 –367 (2011)More Less
In S v Agliotti 2011 (2) SACR 437 (GSJ) the accused was charged on four counts: conspiracy to murder persons A, B, C and D in terms of section 18(2)(a) of the Riotous Assembly Act 17 of 1956; attempted murder in respect of person A and, on the third count, conspiracy to murder person K. On the third count, it was alleged in the indictment that the accused had conspired, together with other people, with person K himself (a prominent businessman, Mr Brett Kebble) to aid or procure the murder of K. In terms of count 4, the accused was also charged with the murder of K. As pointed out by Kgomo J, this was not a "run-of-the-mill case of murder and conspiracy" but was about hidden and / or sinister agendas perpetrated by shoddy characters as well as ostensibly crooked and/or greedy business persons.
Author Managay ReddiSource: South African Journal of Criminal Justice 24, pp 368 –382 (2011)More Less
In terms of s 20 of the Criminal Procedure Act 51 of 1977 the state may seize certain articles for the purpose of obtaining evidence for the institution of a prosecution or deliberating whether to institute a prosecution. Almost anything and everything may be seized in terms of s 20, provided that the item seized falls into one of the following three broad groups: (1) it is concerned with or reasonably suspected to be concerned with the commission of an offence in South Africa or elsewhere; (2) it may provide evidence of the commission of an offence in South Africa or elsewhere; or (3) it is intended to be used or is reasonably believed to be intended for use in the commission of an offence. The broad ambit of s 20 is clearly intended to assist the police in their investigations of criminal cases.
Author Jamil Ddamulira MujuziSource: South African Journal of Criminal Justice 24, pp 389 –416 (2011)More Less
Traditionally a judicial officer was not required to consider the effects of the imposed sentence on the children of the offender, even if the offender was a primary caregiver of young children. The Court in S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) [2007 (12) BCLR 1312] (discussed in detail in Mujuzi (2011) 2 SACJ 164-177) held that, in sentencing primary caregivers of young children, courts should inquire into the effects the sentence will have on such children and, where possible, impose a non-custodial sentence to ensure that the children are not deprived of the care and support of the primary caregiver.
Author Max Du PlessisSource: South African Journal of Criminal Justice 24, pp 417 –428 (2011)More Less