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- Volume 25, Issue 2, 2012
South African Journal of Criminal Justice - Volume 25, Issue 2, 2012
Volume 25, Issue 2, 2012
The legal challenges of search and seizure of electronic evidence in South African criminal procedure : a comparative analysisAuthor Vinesh BasdeoSource: South African Journal of Criminal Justice 25, pp 195 –212 (2012)More Less
The development of search and seizure of electronic evidence powers are amongst the most controversial issues to confront the criminal justice system, the studies of criminal procedure and modern policing. Most of the consequences of search and seizure of electronic evidence impact on and challenge the traditional laws governing criminal investigations and criminal justice. This article considers the suitability of South African laws to address the challenges posed by the search and seizure of electronic evidence. This article also examines the piecemeal powers that exist in relation to search and seizure of electronic evidence in South Africa and compares them with a more principled and integrated approach advocated by the Convention on Cybercrime. Further this article challenges the orthodox concept of search and seizure of electronic evidence in the context of criminal justice.
Source: South African Journal of Criminal Justice 25, pp 213 –234 (2012)More Less
The spoor law is a rule of African customary law that determines liability for stock theft. It provides that, if the tracks of lost or stolen livestock can be traced to a homestead or its immediate surrounds, the head of that establishment will be held liable. If the direction of the spoor do not point to a specific homestead, all those in the vicinity become jointly liable. As a convenient deterrent to the theft of livestock, the spoor law was incorporated into the laws of the Cape Province, Natal and the Transkeian Territories at the end of the nineteenth century, making it the only rule of customary law to be applicable without regard to race prior to the new Constitution. This article questions whether the spoor law still is, and should be, part of South African law. It has never been formally repealed, and still survives in the1983 Transkei Penal Code. Although the law has not been mentioned in a reported case for many years, it might play a valuable role in crime control, since stock theft remains a serious and pervasive crime in South Africa. The article argues, however, that it will probably not survive constitutional review, because it has the effect of imposing a reverse onus of proof.
Author Pieter Du ToitSource: South African Journal of Criminal Justice 25, pp 235 –251 (2012)More Less
In terms of the Criminal Procedure Act a fine is the only sentencing option available to the court upon convicting a corporation for a criminal offence. The fine is imposed upon the individual representing the corporation at the trial in his representative capacity. The ordinary guidelines that regulate the imposition of a fine as punishment apply to the sentencing of corporations. Reported South African case law on corporate criminality, however, focuses primarily on the criminal liability of juristic persons and not so much on factors to be taken into account when the corporation (or,rather, its representative) is to be sentenced. This contribution therefore explores aggravating and mitigating factors that play a role in selected foreign jurisdictions. The United States Federal Sentencing Guidelines, the Canadian Criminal Code, as well as recommendations by the Law Reform Commission of the Australian State of New South Wales are considered. A consideration of these jurisdictions reveals the significance of the unique corporate character of the relevant corporate entity at the sentencing stage. In this regard courts may take into account the financial circumstances of the offender; the existence of effective compliance policies at the time of the offence; the reaction of the corporation to prior criminal conduct; the unique corporate character of the offender as well as the effect of the sentence on the community. South African courts may also find the consideration of these factors helpful.
Author Beatri KrugerSource: South African Journal of Criminal Justice 25, pp 252 –270 (2012)More Less
Increasingly, it is being demanded that the comprehensive draft legislation pertaining to the combating of human trafficking in South Africa be finalised, demands that are based primarily on South Africa's international obligations to combat this crime. An assessment of whether the current antitrafficking legislative framework complies with key criminal law standards laid down in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children reveals significant shortcomings. The existing counter-trafficking legislative response is fragmented and not in full compliance with international counter-trafficking standards. For this reason, law reform is necessary. It is therefore recommended that the enactment of the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 be prioritised and finalised as a matter of urgency.
'No country can yet lay claim to genuine, extensive experience in dealing with trafficking as a criminal phenomenon. Most are developing and adapting their responses on the run, often under strong political pressure,and principally through trial and error.'
Author Jacques WilkinsonSource: South African Journal of Criminal Justice 25, pp 271 –285 (2012)More Less
It is important to determine whether a foetus had been born alive since various legal consequences follow upon such a determination. This article is concerned with the determination of live birth in terms of section 239 of the Criminal Procedure Act 51 of 1977 and live non-birth, the latter concept as transpired in the case of S v Mshumpa 2008 (1) SACR 126 (E). The medico-legal importance and risks of the hydrostatic test in determining live birth will be considered and its novel application in determining breathing before birth (live non-birth) for the purpose of criminal proceedings will also be discussed. Reference will be made to case law and legislation from the United Kingdom and selected states from the United States of America in order to show that section 239 of the Criminal Procedure Act 51 of 1977, which requires only that it be proved that a foetus had breathed in order to establish live birth, does not take into consideration the present medical opinion on the matter, or the legal developments with regard to infanticide and the determination of live birth in other jurisdictions.
Author Max Du PlessisSource: South African Journal of Criminal Justice 25, pp 286 –296 (2012)More Less
International criminal law has sometimes been criticised for 'providing victors in a conflict with an opportunity to demonise their opponents, sanitise their crimes and perpetuate injustice' (W Schabas An Introduction to the International Criminal Court 2 ed (2004) at 1).Similarly, since the International Criminal Court (ICC) was established there have been concerns that the Court has only concentrated on the 'usual suspects' with some arguing that it has illustrated a bias towards prosecuting situations in Africa while neglecting similar violations of the Rome Statute on other continents (see further M du Plessis 'The International Criminal Court and its Work in Africa: Confronting the Myths' (2008) Institute for Security Studies Occasional Paper No. 173 at 5). They are captured in statements to the effect that the ICC is a 'hegemonic tool of western powers which is targeting or discriminating against Africans', as all of the situations to date have come from one continent (ibid). On the other hand, there are concernsthat this 'rhetoric of condemnation' (that the ICC is 'anti-African, and merely an agent of neo-colonialism or neo-imperialism') may damage the institution to such an extent that it is simply abandoned (see N Fritz 'Black-white debate does no justice to a nuanced case' Business Day 13 August 2008).
Source: South African Journal of Criminal Justice 25, pp 297 –307 (2012)More Less
ï»¿The environmental problem is without doubt one of the most critical problems facing our generation today (Judge CG Weeramantry in the foreword to D Grindlinton and P Taylor Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (2011)). Water, as an invaluable human resource, lies at the heart of the environmental disaster threatening the continued existence of life on earth as we know it. This valuable resource, commonly regarded as a gift of nature's bounty (which ought to be reserved for the whole of the populace) has been misused and abused to such an extent that it is only through innovative intervention that its sustainable protection can be pursued.
Author Louise JordaanSource: South African Journal of Criminal Justice 25, pp 308 –320 (2012)More Less
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 25, pp 329 –341 (2012)More Less
In the case ofS v QN 2012 (1) SACR 380 (KZP), the appellant had been convicted of the rape of a five-year-old girl, and sentenced to life imprisonment. The child complainant was six years old at the time she gave evidence in the trial. The appellant appealed against both sentence and conviction.