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- Volume 26, Issue 1, 2013
South African Journal of Criminal Justice - Volume 26, Issue 1, 2013
Volume 26, Issue 1, 2013
Formulating adequate legislation to address cyber-bullying : has the law kept pace with advancing technology?Author F. CassimSource: South African Journal of Criminal Justice 26, pp 1 –20 (2013)More Less
The development of new accessible technologies and the expansion of the Internet have revolutionised communication across the world. Online users rely on the safety and security of the Internet and digital media in their daily lives. However these new technologies have exposed them to a variety of new threats and risks, such as cyber-bullying. The study reveals that cyber-bullying or online bullying has become prevalent among adolescents, and it is considered to be more harmful than typical schoolyard bullying. Cyber-bullying has a significant impact on the lives of victims, their families and friends. It is submitted that acts of cyber-bullying endanger online digital safety and erode confidence in the network technologies that are used. It is recommended that appropriate mechanisms should be put in place to ensure the safety and security of online users and address the devastating impact of cyber-bullying. However, the introduction of any anti-bullying legislation should consider the competing interests of the online user and the victim in an equitable manner. A collaborative effort by all role-players is also necessary to address the rise in cyber-bullying.
Author S.S. TerblancheSource: South African Journal of Criminal Justice 26, pp 21 –40 (2013)More Less
Until its independence in 1990, Namibia shared the South African criminal justice system. Today, it retains the Criminal Procedure Act 51 of 1977 as main means of regulating the criminal justice system. This Act is diverging from the South African version, as it was "frozen" at independence, and has subsequently been amended by the Namibian parliament. Considerable other changes have also been effected. This article investigates the extent to which these changes have contributed to any meaningful differences in practice in Namibia since independence. It finds that the two most substantial developments have been the increase in lengths of prison sentences, and the utilisation of minimum sentences prescribed in legislation. The article concludes that the very long sentences are unlikely to have any positive effect on the Namibian criminal justice system. On the other hand, the way in which the constitutionality of disproportionate minimum sentences is dealt with by the Namibian courts has considerable value for future South African developments.
Decriminalising consensual sexual acts between adolescents within a constitutional framework : The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others Case: 73300/10  ZAGPPHC 1 (4 January 2013). : commentAuthor Philip StevensSource: South African Journal of Criminal Justice 26, pp 41 –54 (2013)More Less
The case under discussion reflects upon the decriminalisation of consensual sexual activity between adolescents within a constitutional realm. The Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 (hereinafter referred to as the 'Act') came into operation on 16 December 2007 (see CR Snyman Criminal Law 5ed (2008) 353; D Smythe and B Pithey Sexual Offences Commentary (2011) v). The Act repealed various common-law crimes and more specifically the common-law crime of rape with an expanded definition and scope, also providing for a gender-neutral definition (Snyman supra 353). In addition, the common-law offence of indecent assault was repealed and replaced with the statutory crime of sexual assault (see in general Smythe and Pithey supra 3-4-3-7; Snyman supra 353). Various other common-law offences such as bestiality, incest and intercourse with a corpse were replaced with new statutory offences (Snyman supra 353). A unique aspect of the Act relates to the chapters dealing with comprehensive new offences relating to sexual acts against children (see Snyman supra 392-399; Smythe and Pithey supra Chs 9-13). The initial purpose behind the Act during its inception was, in addition, to specifically deal with sexual offences against children (Smythe and Pithey supra v). It was, however, later decided that the Act should pertain to sexual offences perpetrated against both adults and children (Smythe and Pithey supra v). The Act accordingly provides for numerous sexual offences against children. The decision under discussion specifically dealt with the provisions of sections 15 and 16 of the Act. Section 15 deals with acts of consensual sexual penetration with certain children (also referred to as statutory rape); whereas section 16 deals with acts of consensual sexual violation with certain children. As the Act is still fairly new, the interpretation of the various sections by the courts remains a daunting reality both at present and in future. The decision under discussion is of particular importance as it is the first decision where sections 15 and 16 of the Act were interpreted within a constitutional framework. The decision sheds light as to the various anomalies which can potentially arise during the application of these sections in practice, emphasising yet again the important interplay between the Constitution and the substantive criminal law and more specifically the law relating to sexual offences.
Author B.C. NaudeSource: South African Journal of Criminal Justice 26, pp 55 –66 (2013)More Less
Previously, proof of a prior inconsistent statement of a testifying witness merely had an impact on the credibility of that witness in that it showed inconsistency. The content of the statement could never be presented as the truth. Recently, however, the Supreme Court of Appeal changed this rule in S v Rathumbu 2012 (2) SACR 219 (SCA) and allowed a previous inconsistent statement as probative evidence (the Supreme Court of Appeal essentially already opened the door for this to happen in S v Ndhlovu 2002 (2) SACR 325 (SCA)). This was after the Kwazulu-Natal High Court did the same in S v Mathonsi 2012 (1) SACR 335 (KZP). This comment considers whether this clear break from the common law is the right decision in view of certain hearsay concerns and the position in comparable foreign jurisdictions. It comes to the conclusion that the new approach should be supported, provided that the reliability of the statement can be established and certain procedural safeguards are adhered to.
Revisiting the relationship between dolus eventualis and luxuria in context of vehicular collisions causing the death of fellow passengers and/or pedestrians : S v Humphreys 2013 (2) SACR 1 (SCA) : commentAuthor Pieter CarstensSource: South African Journal of Criminal Justice 26, pp 67 –74 (2013)More Less
The relationship between intention and negligence (dolus and culpa), in the context of the crimes of murder and culpable homicide, has become somewhat clouded since the decision of S v Ngubane 1985 (3) SA 677 (A) at 687E-I. This is due to the fact that the Appellate Division (as it was then), ruled that it is incorrect to assume, on the same facts, that proof of intention excludes the possibility that the accused was negligent - thus resulting in the inevitable inference that intention and negligence could overlap or co-exist on the same facts: for example, where an accused is charged with the crime of culpable homicide, but the state proves that the accused, in fact, caused the victim's death intentionally, the accused can nevertheless still be convicted of culpable homicide (see CR Snyman Criminal Law 5ed (2008) 218: 'From a theoretical point of view the decision in Ngubane is clearly wrong. The argument of the court is contradictory and a study in illogicality'; see also S v Ramagaga 1992 (1) SACR 455 (B) 465-466; S v Seymour 1998 (1) SACR 66 (N); S v Jara 2003 (2) SACR 216 (Tk); also compare JM Burchell Principles of Criminal Law 3ed (2005) 541; PF Louw 'S v Ngubane 1985 (3) SA 677 (A): Strafreg - die oorvleueling van opset en nalatigheid' (1987) 20 De Jure 173).
Author Shannon HoctorSource: South African Journal of Criminal Justice 26, pp 75 –85 (2013)More Less
Despite precedent sanctioning this approach (S v Van Zyl 1969 (1) SA 553 (A) at 557B-C), there has until recently been considerable prosecutorial reluctance to charge those who have caused death on the roads with murder. However, in two recent High Court cases, S v Qeqe  3 All SA 570 (ECG) and S v Humphreys 2012 JDR 0277 (WCC), murder convictions were obtained where the accused drove with disregard for the lives of others on the road, and by their actions caused the death of child pedestrians and the death of children who were passengers in the accused's vehicle, respectively. Central to these convictions was the concept of dolus eventualis, the form of intention which does not reflect the aim and object of the accused (this is direct intention or dolus directus) but rather where the accused 'foresees the possibility of the circumstance existing or consequence ensuing and proceeds with his or her conduct' (JM Burchell South African Criminal Law and Procedure Vol I: General Principles of Criminal Law 4ed (2011) 363). The latter case of Humphreys was however taken on appeal to the Supreme Court of Appeal, where the question of dolus eventualis in the context of death on the roads was reconsidered.
Author Louise JordaanSource: South African Journal of Criminal Justice 26, pp 86 –96 (2013)More Less
In Van der Burg v NDPP 2012 (2) SACR 331 (CC) the Constitutional Court endorsed the opinion of other courts that the provisions of the Prevention of Organised Crime Act 121 of 1998 (POCA) relating to forfeiture of the instrumentality of 'an offence' are not necessarily limited to organised crimes created in the said Act. The applicants in this case were a married couple with three children who had been running a shebeen unlawfully from their house in a residential area for many years. A forfeiture order had been issued in respect of this house in terms of the provisions of Chapter 6 of POCA. After an unsuccessful application to the Western Cape High Court to have the order set aside, the applicants approached the Constitutional Court, arguing that the interpretation of POCA is a constitutional issue and that forfeiture affects constitutional rights such as the right not to be arbitrarily deprived of one's property and access to adequate housing.
Author Managay ReddiSource: South African Journal of Criminal Justice 26, pp 97 –105 (2013)More Less
The founding provisions of the Constitution of the Republic of South Africa, 1996 make clear that human dignity and freedom are fundamental values (s 1(a)). These values are protected in s 12(1)(a) which proscribes deprivation of freedom which is arbitrary or without just cause; in s 12(1)(e) which proscribes being treated in a cruel, inhuman or degrading manner; and in s 35(1) which delineates the rights of arrested persons.
Author Stephan TerblancheSource: South African Journal of Criminal Justice 26, pp 105 –121 (2013)More Less
The principle of legality has been discussed in some detail, in connection with sentencing, in Director of Public Prosecutions, Western Cape v Prins 2012 (2) SACR 183 (SCA). This judgment has been discussed in a case note in the previous edition of SACJ (see L Jordaan and S Terblanche 'Does the principle of legality require statutory crimes to have specific penalty clauses?' (2012) 25 SACJ 379-389). Suffice to state here that the court interpreted s 276(1) of the Criminal Procedure Act 51 of 1977 to be sufficiently clear to provide for the sentences to be imposed, even if a statutory offence contains no penalty clause. See also S v Booi 2012 (2) SACR 52 (FB); S v Mchunu 2012 (2) SACR 56 (KZP).
Author Max Du PlessisSource: South African Journal of Criminal Justice 26, pp 121 –130 (2013)More Less
Hissène Habré was the president of Chad from 1982 until he was deposed in 1990. He has been living in exile in Senegal since 1990. He was indicted there in 2000 and is under house arrest at the close watch of elite Senegalese armed forces.
During more than two decades of exile, Habré has been the target of numerous parties seeking justice for crimes against humanity, torture and war crimes allegedly committed by him in Chad during his period in office, with recourse sought in a multitude of regional, national and international tribunals.