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- Volume 25, Issue 3, 2012
South African Journal of Criminal Justice - Volume 25, Issue 3, 2012
Volume 25, Issue 3, 2012
A review of the criminal prosecution and sentencing of maintenance defaulters in South Africa, with commentary on sentencing strategiesAuthor Marita CarnelleySource: South African Journal of Criminal Justice 25, pp 343 –360 (2012)More Less
There is a culture of non-payment of maintenance in South Africa. Three criminal offences, under which maintenance defaulters may be charged for disregarding their maintenance duties, are discussed. An assessment of recent judgments reveals that the courts are not using the available sentencing options optimally. By continuously suspending sentences and not using the more effective options such as periodical imprisonment and correctional supervision - especially for recalcitrant maintenance defaulters - the deterrent value of the criminal provisions has eroded. In light of some socio-gender attitudes against the use of the maintenance courts, and indications that some defaulters will only pay maintenance when there is a real possibility of imprisonment, it is imperative that the courts re-evaluate their sentencing strategies, in order to make them more effective and ultimately to serve the needs of the children involved. It is concluded that urgent attention should be given to the training of personnel dealing with the prosecution and sentencing of maintenance defaulters, to sensitise them to the hardships of the complainants, to reiterate their constitutional obligations, and to remind them of the effective sentencing options at their disposal.
Source: South African Journal of Criminal Justice 25, pp 361 –378 (2012)More Less
Robbery is both an extremely broad and an extremely serious crime. Setting the boundaries of this crime is therefore a very significant concern, in order that only those deserving of the stigma and potentially heavier sentence that a robbery conviction entails should be caught in the net of liability for this crime. In particular, it is necessary to distinguish between conduct which will constitute robbery, and conduct which will merely give rise to a conviction of the crimes of which robbery comprises, theft and assault. The recent development whereby the bag snatcher (and cellphone snatcher) has been included in the ambit of the robbery crime (based on the authority of the dictum in S v Mogala 1978 (2) SA 412 (A)) is considered. It is ultimately concluded that this development is not unconstitutional, and is consistent with the structure and function of the crime.
Does the principle of legality require statutory crimes to have specific penalty clauses? A critical analysis of the decisions of the High Court and the Supreme Court of Appeal in DPP, Western Cape v Prins : commentsSource: South African Journal of Criminal Justice 25, pp 379 –389 (2012)More Less
The decision in Director of Public Prosecutions, Western Cape v Prins 2012 (2) SACR 67 (WCC) temporarily pulled the rug out from under the National Prosecuting Authority regarding its endeavours to institute prosecutions against offenders in the vast majority of offences in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the 'Sexual Offences Act'). Prins was charged with a contravention of s 5(1) of the said Act (the crime of sexual assault) for allegedly having touched the breasts of the complainant without her consent. It was contended on his behalf that the charge did not disclose an offence because the Act contained no penalty clause for the particular offence. The regional magistrate upheld the objection and quashed the charge. The Director of Public Prosecutions, Western Cape, appealed against this decision. The Western Cape High Court rejected the appeal, which resulted in a further appeal to the Supreme Court of Appeal, which expeditiously delivered judgment in Director of Public Prosecutions, Western Cape v Prins 2012 (2) SACR 183 (SCA).
Should a dead person forfeit bail money? A discussion of S v BJ Engelbrecht 2012 (2) SACR 212 (GSJ) : commentsSource: South African Journal of Criminal Justice 25, pp 390 –397 (2012)More Less
The case of S v BJ Engelbrecht 2012 (2) SACR 212 (GSJ) is a case concerning the interpretation of section 67 of the Criminal Procedure Act 51 of 1977 (CPA) which deals with the situation where an accused defaults on his bail conditions. In this case, it was impossible for the accused to appear in court as required, because he was dead. The issue was whether the bail money which had been paid on his behalf should be returned, or whether it should be declared forfeited to the state.
Source: South African Journal of Criminal Justice 25, pp 398 –405 (2012)More Less
It has been more than forty years since the Appellate Division approved in principle the approach of finding a motorist guilty of murder for a transgression on the road which resulted in death, in S v Van Zyl 1969 (1) SA 553 (A) at 557B-C. Nevertheless, there has been prosecutorial reluctance to charge motorists who have caused death on the road with murder, principally because although the conduct of driving a motor car bears an inherent risk of harm to others, its social utility makes such conduct indispensable (see R Whiting 'Thoughts on dolus eventualis' (1988) 1 SACJ 440).
Source: South African Journal of Criminal Justice 25, pp 421 –433 (2012)More Less
In general a party who calls a witness does so in the belief that the witness will provide the court with evidence similar to the account provided earlier in a pre-trial statement. Normally, when counsel calls a witness on direct examination, the party calling the witness is not to attack the credibility of or cross-examine the witness called. Such a party cannot ask questions about or introduce evidence of a prior inconsistent statement, bias or bad character. Also, the calling party cannot ask leading questions to the witness in order to get the witness to say what is desired.
Author Warren FreedmanSource: South African Journal of Criminal Justice 25, pp 445 –460 (2012)More Less
Section 26(6) of the Prevention of Organised Crime Act 121 of 1998 ('POCA') provides that a court that issues an order restraining an accused defendant from dealing with the assets held by him or her may make provision for the reasonable legal expenses of that defendant.