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- Volume 27, Issue 2, 2014
South African Journal of Criminal Justice - Volume 27, Issue 2, 2014
Volume 27, Issue 2, 2014
Regulating cases of 'extreme hate speech' in South Africa : a suggested framework for a legislated criminal sanctionSource: South African Journal of Criminal Justice 27, pp 117 –155 (2014)More Less
This contribution investigates the merits of the introduction of a legislated criminal sanction for cases of extreme hate speech in South Africa and discusses the key parameters of a potentially new legal framework to do so. The distinction between hate speech and hate crimes is explored, followed by an analysis of the existing legal framework regulating hate speech in South Africa and a consideration of international law and the legal position in the European Union, the United States and Canada. The authors argue that a legislated hate-motivated crime serves a dual purpose. It protects the rights of the victim and the target group and also ensures that society is informed that hate speech is neither tolerated, nor sanctioned. The threshold test for the criminal sanction must, however, be strict in order to protect the integrity of the right to freedom of expression. Only the advocacy of extreme hatred in public against a group of persons on five prohibited grounds, namely race, ethnicity, gender, sexual orientation and religion, and which constitutes the wilful incitement to cause severe harm to the target group, should be criminalised. A criminal sanction for cases of extreme speech is needed to overcome the grave and substantial threat that pervasive hatred and discord causes to the achievement of the constitutional mandate.
Search and seizure of electronic evidence : division of the traditional one-step process into a new two-step process in a South African contextAuthor Gideon Petrus BouwerSource: South African Journal of Criminal Justice 27, pp 156 –171 (2014)More Less
With the advent of computer technology the basic foundations for the search and seizure of evidence have undergone a shift from the material world to the virtual world of cyberspace. All evidence, be it material or electronic in nature, must be gathered with due observance to the Constitution.
Electronic evidence as a legal concept is new to South African law. The object of an electronic search and seizure procedure is to gather electronic evidence, but this term has not been defined in a universally accepted manner. Although numerous definitions exist, no single definition of electronic evidence has been adopted in South Africa. An appropriate definition is presented in this article.
The physical dynamics of the search and seizure of electronic evidence differ from traditional search and seizures in that two seizures take place. Firstly, the seizure of the hardware, namely the computer or computer components, takes place, and secondly, information is seized after the computer or computer components have been searched. These seizures occur at different times and in different places and are usually performed by different people. The legal implications of this two-step process are discussed in this article.
Author Charnelle Van der BijlSource: South African Journal of Criminal Justice 27, pp 172 –180 (2014)More Less
Affinity-based investment or securities fraud is a form of investment fraud that targets persons who belong to a specific religious, ethnic or racial group. Victims are selected due to their lack of knowledge of investment markets and the trust relationship that exists between these group members (LM Fairfax '"With friends like these...": Toward a more efficacious response to affinity-based securities and investment fraud' (2001) 36 Georgia LR 63 70). Affinity-based fraud essentially exploits the trust or affinity such persons have for their 'own group', or by appealing to such persons' altruism for their own specific community (LM Fairfax 'The thin line between love and hate: Why affinity-based securities fraud constitutes a hate crime' (2003) 36 U.C. Davis LR 1073 1079 - 1080; Fairfax (2001) op cit 63 65, 70-71). It has been defined as 'securities and investment fraud that targets members of an identifiable group perpetrated by a member within the group of someone claiming a desire to assist group members' (Fairfax (2001) op cit 70 and n44).
Author Sarah Rutherford SmithSource: South African Journal of Criminal Justice 27, pp 181 –187 (2014)More Less
Graffiti is a problem in many areas in South Africa. Not only can graffiti be a visual nuisance it may also lead to the general degradation of an area and increasing crime levels (JQ Wilson and GL Kelling 'Broken windows: The police and neighbourhood safety' (1982) March Atlantic Monthly 29). See in general WG Skogan Disorder and Decline: Crime and the Spiral of Decay in American Neighbourhoods (1990). Pursuant to this, it has been suggested that crime levels (especially violent crimes) can be reduced by monitoring, preventing and prosecuting minor crimes (GL Kelling and RP Corbett 'This works: Preventing and reducing crime' (2003) 32 Civic Bulletin 1).
Considering South Africa's significant crime rates, if punishing minor crimes such as graffiti, could assist in lowering the incidence of serious crimes, then it is something South African law officials should pursue. However, prosecuting graffiti crimes is not as simple as it would seem. Indeed, the law seems not to offer a clear solution for the prosecution of graffiti. This comment seeks to explore the confusing legislative position regarding graffiti in South Africa.
Robbery with aggravating circumstances revisited : Minister of Justice and Constitutional Development and Another v Masingili and Another 2014 (1) SACR 437 (CC) : commentsAuthor Philip StevensSource: South African Journal of Criminal Justice 27, pp 188 –198 (2014)More Less
Robbery is a well-established offence within the context of South African criminal law manifesting itself on a daily basis. In essence robbery can be defined as theft of property by unlawfully and intentionally using violence to take the property from someone else; or threats of violence to induce the possessor of the property to submit to the taking of the property (CR Snyman Criminal Law 5ed (2008) 517; J Burchell Principles of Criminal Law 4ed (2013) 706; S Hoctor 'Examining the expanding crime of robbery' (2012) 25 SACJ 361-378; J le Roux 'Vonnisoplegging by roof met verswarende omstandighede' (2005) 30 Journal for Juridical Science 145 at 146; see also recent decisions such as S v Maselani 2013 (2) SACR 172 (SCA); S v Mabunda 2013 (2) SACR 161 (SCA); S v Mofokeng 2014 (1) SACR 229 (GNP).
Author Max Du PlessisSource: South African Journal of Criminal Justice 27, pp 199 –209 (2014)More Less
In June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment available at http://www.au.int/en/content/protocol-amendments-protocol-statute-african-court-justice-and-human-rights). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) (available at http://www.au.int/en/sites/ default/files/PROTOCOL_STATUTE_AFRICAN_COURT_JUSTICE_AND_HUMAN_RIGHTS.pdf) - which was adopted in 2008 to merge the African Court on Human and Peoples' Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court 'International Criminal Law' jurisdiction, adding to the 'Human Rights' jurisdiction it presently exercises and the 'General International Law' jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the 'African Court of Justice and Human and Peoples Rights' (the ACJHPR) (art 8 ACJHPR Amendment).
Author Louise JordaanSource: South African Journal of Criminal Justice 27, pp 210 –221 (2014)More Less
The Constitutional dimensions of the nullum crimen sine lege principle were considered only superficially in Masiya v DPP 2007 (2) SACR 435 (CC). Interpretation of the principle entrenched in s 35(3)(l) of the Bill of Rights was limited to protection afforded to the particular accused (Masiya) against a conviction of rape, a crime which, although recognised as an offence at the time of his conduct (anal penetration of a young girl without her consent), was not sufficiently broadly defined to include his particular act. By recognising that the Constitutional Court and divisions of the high court and the Supreme Court of Appeal are empowered in terms of certain provisions of the Constitution to extend the definition of a crime, the court failed to sufficiently weigh the core values that underpin a democratic state as embodied in the principle of legality (s 35(3)(l)) and the broader principle of the rule of law (see CR Snyman 'Extending the scope of rape - a dangerous precedent' (2007) 124 SALJ 677; S Hoctor 'Recent cases - Specific crimes' (2007) 20 SACJ 260, 262 and R Ramosa 'The limits of judicial law-making in the development of common-law crimes: revisiting the Masiya decisions' (2009) 22 SACJ 353).
Author Managay ReddiSource: South African Journal of Criminal Justice 27, pp 222 –233 (2014)More Less
It is a trite fact that the process of appealing against the refusal by a high court of an appellant's application for leave to appeal is burdensome, time-consuming and expensive. Hence the comment of the court in S v AD  ZASCA 215 at paras - that it was high time for consideration to be given to legislative reform so that petitions could be finalised speedily at high court level. However, such legislative reform was yet to occur when S v Tonkin 2014 (1) SACR 583 (SCA) came to be decided. In Tonkin the court considered whether it should conceivably, in the exercise of its inherent jurisdiction, circumvent the cumbersome process by considering the appeal against the conviction directly.
Author Kelly PhelpsSource: South African Journal of Criminal Justice 27, pp 233 –247 (2014)More Less
In Ngomane v S (A776/2012)  ZAGPPHC 455 (19 June 2014) the appellant was convicted on two charges of robbery with aggravating circumstances and sentenced to an effective 30 years' imprisonment (15 years for each count). He appealed the convictions and sentence. It was held that the convictions must stand but comments made by the magistrate during sentencing pointed to various misdirections.