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- Volume 27, Issue 1, 2014
South African Journal of Criminal Justice - Volume 27, Issue 1, 2014
Volume 27, Issue 1, 2014
Author Nina MollemaSource: South African Journal of Criminal Justice 27, pp 1 –19 (2014)More Less
Human trafficking is high on the agenda of Germany. The country has a long tradition of coordinating anti-trafficking efforts, dating from the 1890s and re-emerging again in the 1970s and late 1990s. The basic protection of trafficked persons' fundamental rights is also provided for in the German Constitution. To address the trade in human beings in the jurisdiction, traditional offences and other legislative measures to combat human trafficking were initially employed; however these laws were not sufficient to effectively counter the phenomenon. As such, the available anti-trafficking provisions in its Penal Code were adjusted to amend identified deficiencies. The main focus of Germany's anti-trafficking policies has traditionally been trafficking in women for the purpose of sexual exploitation. In 2005 the legal framework was brought into line with the Palermo Protocol and all forms of trafficking (trafficking for sexual exploitation, labour purposes and forced marriage) are currently criminalised. This article aims to provide a comprehensive diachronic as well as contemporary overview of the anti-trafficking efforts, the constitutional framework and trafficking legislation of Germany. The results drawn may assist when considering the adequacy and possible efficacy of the legal framework dealing with human trafficking in South Africa.
Author Susan S. KrestonSource: South African Journal of Criminal Justice 27, pp 20 –36 (2014)More Less
This article looks at critical concepts found in the new South African counter-trafficking legislation. First it will examine the issue of consent, and its pivotal role in defining both adult and child trafficking. Next, the concept of coercion will be addressed, and whether such a term should be interpreted broadly to include psychological coercion. Finally, the potential consequences trafficking has for the victim and the role that such longitudinal damage should play in determining a just and informed sentence will be examined.
Author G.P. StevensSource: South African Journal of Criminal Justice 27, pp 37 –47 (2014)More Less
The Drugs and Drug Trafficking Act 140 of 1992 (hereinafter the 'Act') makes provision for the essential crimes pertaining to drugs. The two most important crimes provided for in the Act are dealing in drugs and the use or possession of drugs (see sections 4 and 5 of the Act; CR Snyman Criminal Law (2008) 5ed 428-435; J Burchell Principles of Criminal Law (2006) 3ed 908-917). The Act divides drugs into three general categories which are: dependence producing substances; dangerous dependence producing substances; and undesirable dependence producing substances and the specific drugs resorting into each of these categories are listed in Schedule 2 of the Act (Snyman op cit 429). Dealing in drugs is the more serious offence of the two offences concomitantly carrying harsher sentences or penalties (see section 17(c) and (e) of the Act read with sections 13(e) and (f); S v Cwele and Another 2013 (1) SACR 478 (SCA); S v Gcoba 2011 (2) SACR 231 (KZP); S v Naidoo 2010 (1) SACR 369 (KZP); S v Mtolo 2009 (1) SACR 443 (O); S v Mlambo 2007 (1) SACR 664 (W); S v Tshabalala 2007 (2) SACR 263 (W); Snyman op cit 431). The Act defines 'deal in' in relation to a drug as 'performing any act in connection with the transhipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug'. The case under discussion is of particular relevance as the precise meaning ascribed to term cultivation for purposes of establishing the offence of dealing in drugs was in dispute. The case under discussion, in addition, reflects upon the definitional element of intention required for purposes of the offence of dealing in drugs. The decision is further topical as if, inter alia, reflects upon the principle of strict liability and addresses constitutional concerns relating to the proof of the offence of dealing in drugs. The decision further opens the door to critical debate pertaining to the issue of an accused's right to remain silent and the possible negative impact thereof.
Source: South African Journal of Criminal Justice 27, pp 47 –62 (2014)More Less
This is a discussion of the principles regarding the recusal of judicial officers in the context of the case of Moolla v Director of Public Prosecutions and others (30653/2010)  ZAGP JHC 94, (23 March 2012). This case highlights a number of controversial aspects regarding recusal applications, including the procedures to be followed regarding the ascertainment and evaluation of factual evidence and how one is to conceive of the notional reasonable person for the purposes of establishing whether sufficient grounds for recusal are established. It also raises issues relating to the relationship between the attorney and client.
Author Shannon HoctorSource: South African Journal of Criminal Justice 27, pp 63 –71 (2014)More Less
In Dewnath v S (269/13)  ZASCA 57 (17 April 2014) the Supreme Court of Appeal (SCA) heard an appeal on a murder conviction, which arose out of a 'bitter and murderous sibling rivalry'. Negotiations between the appellant's father and the hired assassin in respect of the amount to be paid to him once he had killed the deceased took place in the back of the appellant's family business.
Author Pieter Du ToitSource: South African Journal of Criminal Justice 27, pp 71 –85 (2014)More Less
A summons or a written notice to appear in court may provide for the payment of an admission of guilt fine by the accused (s 57(1) of the Criminal Procedure Act 51 of 1977). Upon payment of such a fine the accused is, subject to judicial scrutiny by a magistrate, deemed to have been convicted and sentenced by the court in respect of the offence in question (ss 57(6) and 57(7) of the Criminal Procedure Act). In S v Mutobvu 2013 (2) SACR 366 (GNP) the review court set aside an admission of guilt fine in circumstances where the accused was unaware of the consequences of paying such a fine, being deemed to have been convicted and sentenced by the court in respect of the offence.
Author Stephan TerblancheSource: South African Journal of Criminal Justice 27, pp 104 –116 (2014)More Less
A particularly large proportion of the sentencing judgments reported in the first quarter of 2014 involved the offence of rape and the application of the provisions of the Criminal Law Amendment Act 105 of 1997 to these offences. As a result, this case review shows a similar bias.