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- Volume 26, Issue 2, 2013
South African Journal of Criminal Justice - Volume 26, Issue 2, 2013
Volume 26, Issue 2, 2013
Source: South African Journal of Criminal Justice 26, pp 131 –155 (2013)More Less
Although dolus eventualis is a well-established, and indeed, crucially important part of South African criminal practice, there are a number of features of this form of intention which require elucidation. In this article the cognitive component of dolus eventualis, that is, the requirement that the accused foresee the possibility of the harm arising, is examined, in the light of the question whether the proper form of the degree of foresight required ought to be qualified, or unqualified, in nature. After an assessment of the relevant case law and academic writing, it is concluded that the cognitive component of dolus eventualis should be defined in unqualified terms.
Penal rehabilitation in the jurisprudence of the International Criminal Tribunal of Rwanda : pardon and commutation of sentenceAuthor Callixte KavuroSource: South African Journal of Criminal Justice 26, pp 153 –174 (2013)More Less
This paper seeks to critique the International Criminal Tribunal of Rwanda's (ICTR) application of sentencing theory that justifies retribution and general deterrence as a means of contributing to the Rwandan reconciliation processes. Moral justification based on desert is founded on the notion of inflicting pain on the perpetrators so as to condemn and express social disapproval for heinous crimes in the strongest terms while deterrent moral justification is about deterring others from committing similar crimes. The purpose of this article is to illustrate that the application of these theories results in the violation of the right to rehabilitation and pardon, on one hand, and has a negative impact on reconciliation, on the other, and that, in order to avoid this, punishments should comprise of rehabilitative theories so as to transform detainees thereby making them conform. This includes pardoning certain detainees.
When the truth lies elsewhere : a comment on the admissibility of prior inconsistent statements in lightof S v Mathonsi 2012 (1) SACR 335 (KZP) and S v Rathumbu 2012 (2) SACR 219 (SCA) : commentSource: South African Journal of Criminal Justice 26, pp 175 –185 (2013)More Less
There can be few more frustrating experiences for a prosecutor than to call a witness to testify on the strength of the witness's sworn statement, only for the witness to perform an about-turn in the witness box and testify in favour of the defence, or develop a sudden case of amnesia. Part of this frustration must inevitably stem from the longstanding rule of common law, derived from English law, that in such cases the witness's sworn statement may be used solely for purposes of impeaching and cross-examining him and may not be tendered into court as proof of the facts contained therein. Quite often this will mean that the prosecution is left stranded, without sufficient evidence even to place the accused on his defence, let alone achieve a conviction. Recently, however, this rule was revisited by the KwaZulu-Natal Provincial Division of the High Court ('the KZP') in S v Mathonsi (2012 (1) SACR 335 (KZP)), followed shortly by the decision of the Supreme Court of Appeal ('the SCA') in S v Rathumbu 2012 (2) SACR 219 (SCA).
Source: South African Journal of Criminal Justice 26, pp 186 –196 (2013)More Less
In S v SM 2013 (2) SACR 111 (SCA) the Supreme Court of Appeal was required to hear an appeal relating to a conviction on charges of rape, indecent assault and crimen injuria flowing from the appellant's sexual abuse of his adopted minor daughter. The facts were not in dispute, and thus the appeal was confined to the following legal issues: whether the complainant had consented to the acts in question, and whether the appellant believed that she had consented (putative consent).
Author Petro SwanepoelSource: South African Journal of Criminal Justice 26, pp 197 –211 (2013)More Less
The concept of social justice might not belong to the core of criminal procedure, as it is usually sought through the socio-economic rights of housing, health care and environment (ss 26 and 27 of the Constitution of the Republic of South Africa, 1996 - the 'Constitution'). However, here it is argued that the courts' approach to the indigent accused or victim of crime cannot be founded solely on the constitutional principle of a fair trial, but on the objective normative values as established by the Constitution, of human dignity (s 10), equality (s 9), and Ubuntu (which concept denotes in its fundamental sense 'humanity and morality': S v Makwanyane 1995 (3) SA 391 (CC) at para , but is not discussed here).
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 26, pp 211 –224 (2013)More Less
In the case of S v BM 2012 (2) SACR 507 (FB), the appellant appealed against his conviction of the rape of a 9-year-old child. The complainant, and her 11-year-old friend, testified for the state. The appellant appealed against his conviction on two main grounds. Firstly, that the competence of the witnesses was not established, as they had not demonstrated that they understood the distinction between truth and lies. Secondly, that they had not been properly sworn in in terms of s 164 of the Criminal Procedure Act 51 of 1977, which provides that a child who is unable to understand the oath is not required to take the oath and will still be a competent witness as long as she is admonished to give truthful evidence.
Author Warren FreedmanSource: South African Journal of Criminal Justice 26, pp 235 –253 (2013)More Less
When it comes to the application of the Bill of Rights, it is important to distinguish between the direct and indirect application of the Bill of Rights as well as the vertical and horizontal application of the Bill of Rights. When the Bill of Rights applies directly, the purpose is to determine whether the ordinary rules of law (i.e. legislation, common law and customary law) are consistent with the Bill of Rights. If they are not, the Bill of Rights overrides the ordinary rules of law and generates its own set of special remedies, for example actual severance, notional severance and reading-in.