- A-Z Publications
- South African Journal of Criminal Justice
- Previous Issues
- Volume 25, Issue 1, 2012
South African Journal of Criminal Justice - Volume 25, Issue 1, 2012
Volume 25, Issue 1, 2012
Source: South African Journal of Criminal Justice 25, pp 1 –23 (2012)More Less
Currently, threats of violence in the form of words have been interpreted as constituting an assault where there is an inspired belief or expectation of a future physical attack. This article analyses Snyman's revised definition of assault with regard to the concept of 'bodily integrity' to establish whether severe emotional abuse cases, where there is no expectation of a future attack, can be brought within the ambit of the crime of assault. An investigation ensues into the nature of so-called 'psychological assault' and the meaning of 'bodily' harm with reference to case law in the United Kingdom. The premise of the article is therefore centred around whether an interpretation of the term 'bodily integrity' could include emotional verbal abuse as a form of assault, where there is no threat of a future physical attack, as a direct or indirect impairment of bodily integrity.
Author Clare BallardSource: South African Journal of Criminal Justice 25, pp 24 –43 (2012)More Less
Thousands of accused persons in South Africa spend lengthy periods of time in remand detention. The longer a remand detainee is kept in custody pending trial, the greater the infringement is on his or her right to liberty. Accordingly, the burden on the State to justify prolonged detention becomes greater with the passage of time and the reasons which initially justified remand detention will, at a certain point, no longer constitute sufficient justification for the continued remand detention. South African jurisprudence, compared to the European Court of Human Rights and other international adjudicatory bodies, has not developed to the point where courts interrogate the prosecution regarding the reasons for continued detention and actively inquire into the status of the investigation. Moreover, the legislative framework does not require that bail decisions be brought before courts repeatedly and at regular intervals. Automatic bail review and maximum custody limits are important legislative mechanisms that would not only promote the robust jurisprudential protection of the right to liberty, but remedy the current failure of the Criminal Procedure Act 51 of 1977 (CPA) to adequately protect a remand detainees' right not to be detained arbitrarily or without just cause.
Source: South African Journal of Criminal Justice 25, pp 44 –66 (2012)More Less
This article addresses the problematic conceptual interface between law and the fields of psychiatry and psychology when the defence of pathological criminal incapacity is raised in a criminal court. The definition and assessment of 'mental illness' or 'mental defect' as threshold requirements for the defence are analyzed according to the medical model, legal model and cross-dimensional model of mental illness.
Author Chesne AlbertusSource: South African Journal of Criminal Justice 25, pp 67 –83 (2012)More Less
'We ought to give those who are to leave life ... the terminally ill ... the same care and attention that we give those who enter life - the new-born.' In this article it is contended that terminally ill inmates have a right to palliative care and that the State has a duty to fulfil this right. The number of unsuccessful medical parole applications and recorded natural deaths of inmates is considered as indicative of the problem of terminally ill inmates in South African prisons. It is further contended that the State's obligation arises from an inmate's constitutional right to health care and from an increasingly recognised international human right to palliative care.
Determining reasonable force in cases of private defence - a comment on the approach in S v Steyn 2010 (1) SACR 411 (SCA) : commentsAuthor Shelley WalkerSource: South African Journal of Criminal Justice 25, pp 84 –92 (2012)More Less
It is trite law that one may lawfully use reasonable force to defend oneself against an unlawful attack by another person. The defence in question, popularly known as self-defence and more properly termed private defence of person, is probably the most commonly known of the justification defences. Although there is no precise test for determining what constitutes reasonable force in any given case, the Supreme Court of Appeal (SCA) appeared to have settled the law on this point in S v Trainor (2003 (1) SACR 35 (SCA) at para ), where it held that all that is required is that 'there should be a reasonable relationship between the attack and the defensive act, in the light of the particular circumstances in which the events take place'. It is perhaps surprising, therefore, that the SCA was required to revisit the question in S v Steyn (2010 (1) SACR 411 (SCA)), an appeal against a conviction for culpable homicide in the Port Elizabeth High Court.
Sentencing filicidal parents : a discussion in the context of two recent cases : S v Saziso Notice Mtshali Case Number CC 147/09, and S v Shaw 2011 (1) SACR 368 (ECG) : commentsAuthor Nicci Whitear-NelSource: South African Journal of Criminal Justice 25, pp 93 –105 (2012)More Less
Filicide is a form of murder where a parent (not necessarily biological) kills one or more of his or her children. This article considers the nature of filicide and factors relevant to sentencing a parent involved in filicide. This is in the specific context of two recent South African cases, S v Saziso Notice Mtshali Case Number CC 147/09 and S v Shaw 2011 (1) SACR 368 (ECG).
Do not visit the sins of the parents upon their children : sentencing considerations of the primary caregiver should focus on the long-term best interests of the child : commentsSource: South African Journal of Criminal Justice 25, pp 106 –116 (2012)More Less
Before the advent of democracy in 1994, criminal sentencing was governed by the guidelines found in S v Zinn (1969 (2) SA 537 (A) at 540G-H), which required a court - when sentencing an offender - to consider the following triad of factors in determination of an appropriate sentence: the nature of the crime, the personal circumstances of the offender, and the interests of the community. No special focus was placed on the interests of minor children as an independent factor. If a criminal was a primary caregiver of minor children, this was merely one of many factors considered in mitigation under the personal circumstances of the offender (E Coetzee 'Can the application of the human rights of the child in a criminal case result in a therapeutic outcome?' (2010) 13(3) Potchefstroom Electronic Law Journal 126 at 130).
Sexual Offences Commentary Act 32 of 2007 (Loose-leaf edition), D. Smythe , B. Pithey, L. Artz (Eds.) : book reviewSource: South African Journal of Criminal Justice 25, pp 117 –119 (2012)More Less
The preamble of the Criminal Law (Sexual Offences and Related Matters) Amendment 32 of 2007 (hereinafter 'SORMA') provides that 'the commission of sexual offences in the Republic is of grave concern, as it has a particularly disadvantageous impact on vulnerable persons, the society as a whole and the economy.' It is therefore of utmost importance that persons who are dealing with sexual offences are fully conversant with the provisions of the new Sexual Offences Act. Viewed in this light, the Sexual Offences Commentary serves as an essential and practical guide to the new Sexual Offence legislation as it not only analyses each section of SORMA in sequence, but also highlights the challenges and grey areas posed by the legislation. The contributions are made by academics and practitioners who are experts in the field of sexual offences.
Author Petro SwanepoelSource: South African Journal of Criminal Justice 25, pp 120 –139 (2012)More Less
In the context of an adversarial system of law in a constitutional dispensation (where the respective parties and their counsel play the main roles in court in presenting evidence, questioning of witnesses, and arguing their cases), the responsibilities of the prosecutor (also referred to as the 'state') have become more constitutionally grounded. In order to ensure that the accused is afforded a structurally constitutional fair trial, the dynamics of the prosecutorial role have changed owing to the unique role and responsibilities afforded the state in a criminal trial. This entails that such responsibility be approached in a manner combining ability, fairness and detachment so as to avoid partiality whilst still having the overriding objective of establishing the truth. Conduct on the part of the prosecution in a particular case prior to the commencement of the trial proceedings could be construed as unfair and could compromise the legitimacy of the trial.
Source: South African Journal of Criminal Justice 25, pp 139 –151 (2012)More Less
Trawling through the law reports for cases that deal with evidence law for this discussion, I unfortunately came up with an empty net. The small bounty that I did find lay in the clutch of Supreme Court of Appeal judgments during this time. Among these, some deal with instances of intimate or acquaintance rape of children and the case of Gilbert v The State  ZASCA185 (30 September 2011) deals with the issue of the evaluation and assessment of evidence.
Author Annette Van der MerweSource: South African Journal of Criminal Justice 25, pp 151 –164 (2012)More Less
When sentencing cases with a racial connotation, it is of particular importance to take public interest into account. In S v Combrink 2012 (1) SACR 93 (SCA) it was highlighted that the sentence in such a matter should not incense the public with 'an appearance to favour a particular group in society' (at para 24). This matter involved the conduct of a farmer (C) who fired two shots in the direction of the deceased, the second shot being fatal. C did this as the deceased - a farm worker - was walking through his mealie fields, and created suspicion, as he did not respond to C's repeated calls.
Author Warren FreedmanSource: South African Journal of Criminal Justice 25, pp 164 –179 (2012)More Less
More than one hundred years ago, Innes CJ held in Hertzfelder v Attorney-General 1907 TS 403 that a search warrant issued in terms of s 45 of Ordinance 1 of 1903 (a forerunner to ss 20 and 21 the Criminal Procedure Act 51 of 1977) will only be intelligible and thus valid if the offence being investigated is specified in the warrant itself. Unfortunately, Innes CJ's decision was overturned some 22 years later by a majority in Pullen NO, Bartman NO and Orr NO v Waja 1929 TPD 838 on the narrow grounds that s 49 of the Criminal Procedure and Evidence Act 31 of 1917 (yet another forerunner to ss 20 and 21 of the Criminal Procedure Act) did not require the offence to be specified in the warrant. The question whether a search warrant issued in terms of ss 20 and 21 of the Criminal Procedure Act must specify the offence being investigated in order to be valid, therefore, has been a contentious one, that is until the Constitutional Court's judgment in Minister of Safety and Security v Van der Merwe 2011 (2) SACR 301 (CC).
Source: South African Journal of Criminal Justice 25, pp 180 –193 (2012)More Less
South Africa's criminal justice system has traditionally provided protection for the rights of three categories of persons, namely perpetrators, victims and witnesses - both adults and children. In recent years, however, there has been increasing jurisprudential recognition of a fourth category of affected persons whose rights and interests need to be independently protected. This category is the children of perpetrators (see S v Kika 1998 (2) SACR 428 (W); S v Howells 1999 (1) SACR 675 (C) and S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)). The majority of these cases and subsequent academic literature has dealt almost exclusively with the upholding of children's rights within the context of sentencing primary caregivers (D Erasmus '"There is something you are missing: What about the children?": Separating the rights of children from those of their caregivers' (2011) 25 SAPL 124; A Skelton 'Severing the umbilical cord: A subtle jurisprudential shift regarding children and their primary caregivers' (2008) 1 CCR 351; JD Mujuzi '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 children' (2011) 24 SACJ 164). There is an emerging judicial trend towards considering children's rights in all instances where a court exercises a discretion that will ultimately curtail the right to parental care. It is this trend that the subsequent case descriptions seek to highlight.