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- Volume 26, Issue 3, 2013
South African Journal of Criminal Justice - Volume 26, Issue 3, 2013
Volume 26, Issue 3, 2013
Author Stephan TerblancheSource: South African Journal of Criminal Justice 26, pp 255 –256 (2013)More Less
The Child Justice Act 75 of 2008 is one of the most important single pieces of legislation affecting criminal justice administration in South Africa, to have been passed since 1994. It introduced a new criminal justice system for child offenders, requiring a different approach to be taken with respect to all children who come into conflict with the law. This different approach is required from every branch of the criminal justice system, from the police and probation services, to those institutions responsible for the execution of court orders and sentences. Being new, the Act requires constant attention from the courts and from academic writers. In a modest attempt to facilitate this process, the editors decided to dedicate this edition of the South African Journal of Criminal Justice to a variety of issues related to the Act. To this end, we invited contributions from a variety of established authors on the topic, as well as a few newer names.
Author Ann SkeltonSource: South African Journal of Criminal Justice 26, pp 257 –275 (2013)More Less
The minimum age of criminal capacity in South Africa used to be seven years of age, one of the lowest in the world. The Child Justice Act raised that age from seven to 10 years, and retained the rebuttable presumption of criminal incapacity for those children aged 10 years or older but under the age of 14. The Act also provided for a review of the minimum age, with a view to raising it, within five years of the Act's commencement. This article explores the current international debates about setting a minimum age of criminal responsibility, to garner ideas for the upcoming review. The relevant provisions of the Child Justice Act and their practical implementation are interrogated. The conclusion is that the current provisions fall short of international standards in a number of ways, and that children's rights are at risk in the current system. The setting of a new, single minimum age of criminal responsibility is proposed, together with the abolition of the doli incapax presumption which will obviate the need for the assessment of criminal capacity. The author prefers 14 as the new minimum age, but considers 12 the more likely age to be accepted by the legislature.
Author Michelle KarelsSource: South African Journal of Criminal Justice 26, pp 276 –301 (2013)More Less
By implementing the Child Justice Act 75 of 2008, the legislature has ensured that child offenders are held accountable for their criminal actions in a manner that takes cognisance of their particular vulnerability. This restorative approach has mandated the implementation of various novel court procedures and altered numerous others under the Criminal Procedure Act 51 of 1977. This research examines the peculiar position of defence counsel under the auspices of the Child Justice Act 75 of 2008 and compares the position of South African legal representatives to those of their American counterparts practising in the organised profession at Federal and/or State level. The submission argues that the Act, although laudable in purpose, is deficient in identifying, defining, and regulating the client-centred versus best interests binary that legal representatives face when defending child offenders. The enactment of practice standards and directives may go some way in improving the ethical and professional dilemma faced by defence counsel whilst simultaneously ensuring that child offenders are protected from the paternalistic attitude of best interest lawyering.
Author Charmain BadenhorstSource: South African Journal of Criminal Justice 26, pp 302 –315 (2013)More Less
Diversion of cases involving child offenders has been part of the South African criminal justice system since the early 1990's. However, prior to the implementation of the Child Justice Act 75 of 2008, there was no legal framework for diversion and this increased the risk of discriminatory practices against child offenders. The Child Justice Act 75 of 2008 provides the much-needed legal framework for diversion which gives guidance on the considerations for diversion, diversion options, the duration of diversion and accreditation of diversion programmes and diversion service providers. Before the implementation of the Child Justice Act 75 of 2008, diversion (in the cases where it was considered at all) was almost always considered before the matter was placed on the court roll or shortly thereafter, but definitely before plea. The Child Justice Act 75 of 2008 provides for various stages where diversion can be considered up until closure of the state's case. This article discusses the diversion process in terms of the Child Justice Act 75 of 2008, highlights some of the important provisions and provides insight into case law on diversion since the implementation of the Child Justice Act 75 of 2008.
Deprivation of children's liberty 'as a last resort' and 'for the shortest period of time' : how far have we come? And can we do better?Source: South African Journal of Criminal Justice 26, pp 316 –336 (2013)More Less
Commencing with a brief historical overview of detention of children in South Africa, and legislative attempts to curb its use, this article reviews all forms of deprivation of liberty under the Child Justice Act 75 of 2008 and attempts to assess at a practical level whether - or not - progress is being made in the quest for the minimal use of deprivation of liberty.
Source: South African Journal of Criminal Justice 26, pp 337 –353 (2013)More Less
The principle, the rights of the child shall be of paramount importance in all decisions affecting the child, is established firmly in international law and, accordingly, reflected in the Constitution. Constitutional jurisprudence acknowledges the notion that children are physically and psychologically more vulnerable than adults and thus require treatment that is different from adults when they come into conflict with the law. It is this differentiation that lies at the heart of the Child Justice Act 75 of 2008, the legislation that sets out the criminal procedure specific to the needs of children, as well as the principle that children's exposure to the criminal justice system should be limited wherever possible.
The Correctional Services Act 111 of 1998 predates the Child Justice Act by approximately ten years - a period when legislators were perhaps less attuned to the needs of children in conflict with the law. When examined against the requirements of s 28(2) of the Constitution, there are, unfortunately, a number of shortcomings in the Correctional Services Act in relation to sentence administration and remand detention. These are discussed according to the following themes: (1) remand detention of children and how this is regulated by the Correctional Services Act and the Child Justice Act; (2) sentence administration with specific reference to the parole regime; (3) conditions of detention with reference to the privilege system and access to services.
Source: South African Journal of Criminal Justice 26, pp 354 –363 (2013)More Less
In the Constitutional Court judgment of S v Thunzi and Mlonzi 2010 (10) BCLR 983 (CC) the court had to deal with a consequence of constitutional transition: 'incongruities and anomalies' that were bound to arise from the integration of the separate legislative regimes in the former TBVC (Transkei, Bophuthatswana, Venda and Ciskei) states (at para ). The court noted that there were 'two identical statutes in the same national territory, dealing with the same subject-matter and designated by the same act number and year': the national Dangerous Weapons Act 71 of 1968 (SA) and the Dangerous Weapons Act 71 of 1968 (Transkei) (at para ). The difference between the two statutes was that in terms of section 4 of the Transkei Act, a harsher sentencing regime was applicable (at para ). Although the matter was not fully argued before them, the Constitutional Court questioned the constitutionality of the dual systems, raised the question whether there was not a constitutional obligation on Parliament to establish uniform legislation, and ultimately required Parliament to notify the court of steps it had taken to rationalise the situation into uniform national legislation (at paras -. See also the Memorandum on the Objects of the Dangerous Weapons Bill, 2012 at 5 (GN 606 in GG 34579, 2010/09/02)).
Author Louise JordaanSource: South African Journal of Criminal Justice 26, pp 364 –378 (2013)More Less
In S v Nyalungu 2013 (2) SACR 99 (T) the accused, who had engaged in non-consensual sexual intercourse with a woman while knowing that he was HIV-positive, was convicted in the regional court of rape and attempted murder. The matter was referred to the High Court for sentencing. The High Court took into account the question whether the conviction of the accused for attempted murder was in accordance with current South African law. Jordaan AJ began his judgment by noting that Aids is a disease of astronomical proportions and that the mortality rate of people suffering from this disease is extremely high.
Author Managay ReddiSource: South African Journal of Criminal Justice 26, pp 378 –388 (2013)More Less
It is a trite fact that the power conferred by a warrant to search and thereafter, to seize that which is found, amounts to a material invasion of such common law protected rights as the rights to privacy, property and personal integrity (Powell NO and Others v Van Der Merwe NO and Others 2005 (1) SACR 317 (SCA)). Because of the far-reaching implications of the injudicious exercise of this power, sections 20 and 21 of the Criminal Procedure Act 51 of 1977 (hereafter the CPA) authorises only judicial officers to issue search and seizure warrants, as they are considered to possess the qualities and skills necessary for the proper exercise of this power, such as independence and the ability to evaluate relevant information so as to make informed decisions (Minister of Safety and Security v Van der Merwe and Others 2011 (2) SACR 301 (CC) at para ).
Source: South African Journal of Criminal Justice 26, pp 388 –399 (2013)More Less
In the trial court the appellant was convicted of the rape of a 14-year-old girl in terms of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007. The appellant, who was legally represented, pleaded not guilty and denied having sexual intercourse with the complainant.
Author Annette Van der MerweSource: South African Journal of Criminal Justice 26, pp 399 –418 (2013)More Less
A number of judgments highlighted the after-effects of the crime of rape as an important aggravating factor affecting sentence. In S v Tuswa 2013 (2) SACR 269 (KZP) 'the accused's conduct has reduced the complainant from an independent farming woman and a leader in her community to someone [who is] ... "mentally disturbed, forgetful and frightened with no self-confidence" ' (at para ). The court attached substantial weight to this factor, particularly in the light that the complainant was theoretically old enough to be the accused's great-great grandmother (at para ).
Author Warren FreedmanSource: South African Journal of Criminal Justice 26, pp 418 –431 (2013)More Less
The majority of rights in the Bill of Rights state that they may be claimed by 'everyone'. Section 9(1), for example, states that 'everyone is equal before the law and had to the right to equal protection and benefit of the law'; section 15(1) that 'everyone has the right to freedom of conscience, religion, thought, belief and opinion'; and section 25(1) that 'no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property'.
Author Christopher GeversSource: South African Journal of Criminal Justice 26, pp 431 –438 (2013)More Less
In National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre unreported case, case number (485/2012  ZASCA 168 (27 November 2013), the Supreme Court of Appeal unanimously rejected an appeal by the Police and the National Prosecution Agency (NPA) in the so-called 'Torture Docket case'. The appeal concerned the decision by Fabricius J in the High Court to set aside the decision of the South African Police Service ('SAPS') and the NPA not to investigate alleged crimes against humanity committed in Zimbabwe in 2007.
Author Marita CarnelleySource: South African Journal of Criminal Justice 26, pp 439 –446 (2013)More Less
In the matter of S v Wiggil 2013 (2) SACR 246 (ECG), the offender was convicted of one count of theft of more than R1.7 million. She was sentenced to 15 years' imprisonment with two stipulations: one, that the Department of Social Development would take steps to ensure that her minor child was properly cared for during the period of imprisonment and two, that she be considered for placement on parole after having served two-thirds of her imprisonment in terms of s 73(6)(b)(v) of the Correctional Services Act 111 of 1998. She appealed against her sentence only. It should be noted that she pleaded guilty and although convicted of only one count of theft, the circumstances of the theft was that she continuously stole from the employer over a two-year period from a position of trust.