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- Volume 27, Issue 3, 2014
South African Journal of Criminal Justice - Volume 27, Issue 3, 2014
Volume 27, Issue 3, 2014
Twenty years after : the impact of the bill of rights on criminal justice in South Africa : editors' forewordSource: South African Journal of Criminal Justice 27 (2014)More Less
The criminal justice system was an important mechanism for enforcing apartheid. It criminalised behaviour that in a democratic society would simply be considered the exercise of basic rights, such as choosing whom to marry, where to live, work and play. Draconian security and emergency laws allowed the state to silence dissent : permitting indefinite detention without trial or denying access to legal representation. The concept of equality was devoid of any substantive content. The common law remained in place and gave the criminal justice system a veneer of respectability. However, for the majority of South Africans this was not sufficient to legitimise it.
Protecting dignity under common law and the Constitution : the significance of crimen iniuria in South African criminal lawAuthor Jonathan BurchellSource: South African Journal of Criminal Justice 27, pp 250 –271 (2014)More Less
Implicitly or explicitly, the core of the protection of fundamental human rights can be found in the value of individual dignity - in the sense of the self-worth, uniqueness, identity, autonomy, privacy and freedom of all human beings. This concept of dignity lies at the heart of equal respect for human worth (equality) that underpins all human rights ideologies.A significant facet of the South African Constitution of 1996 is that the Bill of Rights (Chapter 2) explicitly, not just impliedly, respects and protects such human dignity. Furthermore, it is important to bear in mind that the South African concept of dignity, in its constitutional, civil and criminal setting, is not completely comparable with that in the German Basic Law. Under South African law, dignity is of fundamental worth, but it is not inviolable - it can be limited and, as will be seen, for convincing reasons.
Author Andrew PaizesSource: South African Journal of Criminal Justice 27, pp 272 –292 (2014)More Less
When I first came to the law of evidence many years ago as a law student, I was immediately fascinated by its many hues and textures. Here was a subject unlike any other. It was neither substantive nor entirely procedural; it rested upon archaic English foundations except when it did not; it had rationalist undertones but was replete with utterly counter-intuitive rules and propositions; it seduced with its tantalising ideas and concepts, yet frustrated with its reluctance to break free of hidebound thinking. In South Africa, in particular, where we had inherited a system based on jury trials, much seemed ripe for reconsideration and reform.
In short, I was quickly hooked. There seemed to be few other areas where an academic could so happily do what he enjoyed most - complain about the way things are and point out ways to make things better. As a young academic, I could not understand why the courts refused to embrace the challenge themselves. If, for instance, you have a rule that hearsay evidence should not be admitted because it is potentially unreliable and prejudicial, and you have a rule that hearsay is, accordingly, inadmissible unless it falls within a recognised, existing exception, how can you defend a position that no new exceptions can be created when you accept (as you must) that the existing exceptions cannot possibly be exhaustive and that instances must arise where reliable hearsay evidence demands, in the interests of justice, to be received?
Author P.J. SchwikkardSource: South African Journal of Criminal Justice 27, pp 293 –305 (2014)More Less
It is obvious that the right to legal representation, guaranteed in s 35 of the Constitution of the Republic of South Africa must include competent legal representation. The right to legal representation is traditionally viewed as a pre-requisite for the protection of the privilege against self-incrimination. If this line of reasoning is pursued it follows that competent legal representation is required to uphold the privilege against self-incrimination. But the following questions arise : how does a court determine incompetence and when will incompetence render a trial unfair?
The pre-trial right to silence whilst exercising the right to access police dockets in South African law : a right too far?Source: South African Journal of Criminal Justice 27, pp 306 –324 (2014)More Less
Section 32(1) of the South African Constitution confers on everyone the right of access to any information, held by the state or another person, that impacts on the exercise or protection of any rights. In the context of arrested and accused persons this translates to the right of such persons to obtain access to information in the police docket for the purposes of a fair trial. The issue of whether an accused is entitled to unfettered access to the contents of a police docket for the purpose of a fair trial has largely been settled in South African law : although there is authority in South African case law for the view that the right to a fair trial begins at the pre-trial stage which includes bail applications, and accused persons do not have the right to access the police docket for the purpose of a bail application. However, access to a police docket in preparation for trial is permitted unless the prosecution can show that the accused does not need access to the docket for the purposes of a fair trial. Even the right to silence which is the corollary of the privilege against self-incrimination, is not unfettered: accused persons applying for bail are faced with the choice between the right to bail and the exercise of the privilege against self-incrimination.
Reasonable suspicion and conduct of the police officer in arrest without warrant : are the demands of the bill of rights a fifth jurisdictional fact?Author Chuks OkpalubaSource: South African Journal of Criminal Justice 27, pp 325 –345 (2014)More Less
Quite apart from the power to arrest a person who committed or attempted to commit an offence in the presence of a police officer under s 40(1)(a) of the Criminal Procedure Act 1977, the officer can, under s 40(1)(b), arrest anyone without a warrant if he or she reasonably suspects that the person has committed an offence specified in Schedule 1 of the Act. As much as the determination of whether an offence has been committed or about to be committed in the presence of an officer is difficult to prove, what is a reasonable suspicion that an offence has been committed is even more intractable to determine. Yet, similar elusive terms exist in criminal justice statutes of other Commonwealth countries. Further, notwithstanding the problem of accurately pinpointing the elements of reasonable suspicion, the law-maker has unrelentingly deployed this same problematic expression in the legislative schemes dealing not only with arrests and detentions, but also use of force to effect arrest, entry into private property in order to arrest or search and seize property, as well as the law of malicious prosecution.
Author Monique MarksSource: South African Journal of Criminal Justice 27, pp 346 –376 (2014)More Less
In this segment of a poem entitled 'Marikana', written by sociologist and poet Ari Sitas, we are reminded of the horror of the police intervention during a strike by miners at the Lonmin owned Marikana mine. In this incident which took place on the 16th of August 2012, 34 protesting miners were killed by police gunfire. This event, some of which was captured on television footage, sent shock waves throughout the country and the world. The horror and disbelief evoked by the graphic images of the massacre are conjured in the poem by Sitas.The massacre at Marikana has come to hold a central place in the analysis of policing, and broader political events, since 2012. In the eyes of a number of policing researchers and commentators it is viewed as symbolic of the new political order's failure to overcome historical inequalities and also as representing the breakdown of the process of (arguably fragile and contingent) democratic police reform. As Alexander et al put it in reflecting on Marikana : 'What is especially galling is that the atrocity occurred, not under an apartheid regime hostile to the black majority, but under a democratically elected government'.
Source: South African Journal of Criminal Justice 27, pp 377 –403 (2014)More Less
A pervasive sense of crisis had long beset the policing of the Apartheid colony. The transition to democracy, it was thought, would finally put that crisis to bed. The early post-1994 period of reconstruction envisaged that far-reaching policy reforms and institutional changes would replace the old system, with a community-orientated, democratic model of policing emphasising accountability and efficiency. Over the past twenty-odd years much effort has gone into the dismantling of the structures, operational strategies and cultural mind-sets associated with the Apartheid model of paramilitary policing. A bold emphasis on collaborative partnerships between communities and police was intended to replace the spirit of adversarialism which often defined community-police interactions under Apartheid.
Author Max Du PlessisSource: South African Journal of Criminal Justice 27, pp 404 –437 (2014)More Less
The special edition of this journal allows a chance to reflect on twenty years of constitutional democracy. This article's focus is on a particular area of development in the field of international criminal law, how those developments have resonated inwardly within South African law, and lessons that might be drawn outwardly for other states that are faced with similar challenges. The area of development I am concerned to discuss is the concept of complementarity, which is a principle embedded within the international criminal justice system of the International Criminal Court ('the ICC'. While the world since 2002 has had a permanent international criminal court doing its work in The Hague, a central feature of the Rome Statute of the ICC (its founding document ('the Rome Statute') is that states parties to the ICC are encouraged to investigate and prosecute ICC crimes domestically. It is only if states are unwilling or unable to do so that the ICC is permitted to intervene. Increasingly, for reasons I shall explore, there is a growing recognition that complementarity - and its embrace of domestic efforts to tackle international crimes - is likely to be a serious (if not the) mechanism by which to ensure the legitimacy of the international criminal justice project. But as we shall also see, while in principle the notion of domestic prosecutors acting as conduits of international justice is appealing, the practicalities of that work are challenging, and any domestic steps to hold international criminals accountable bear their own political and legal challenges. The South African experience is both illuminating and sobering in this regard.
Source: South African Journal of Criminal Justice 27, pp 438 –452 (2014)More Less
The South African law in respect of the admissibility of admissions and confessions by accused persons against their co-accused is based on the English common-law position, which states that '[w]here several persons are accused of an offence, and one of them makes a confession or an ad'; and that 'statements which are not made in pursuance of the common design are evidence only against the makers' (Halsbury's Laws of England 4ed (1990) vol 11(2) para 1131). An overview of South African common law (as discussed in R v Matsitwane 1942 AD 213 at 218; R v Baartman 1960 (3) SA 535 (A) at 542C-E; S v Banda 1990 (3) SA 466 (B) at 506; S v Molimi 2008 (2) SACR 76 (CC) at para ) indicates that admissions by one accused against a co-accused are inadmissible. Furthermore section 219 of the Criminal Procedure Act 51 of 1977 specifically states that a confession by an accused would not be admissible evidence against another accused person. Section 219A states that '[e]vidence of any admission made extra-judicially by any person in relation to the commission of an offence shall ... be admissible in evidence against him' (that is the maker of the admission). However, in 2002 the case of Ndhlovu v S  3 All SA 760 (SCA) brought a dramatic change.
Author Annette Van der MerweSource: South African Journal of Criminal Justice 27, pp 453 –466 (2014)More Less
There is no absolute line between culpability and non-culpability (CR Snyman Criminal Law 5ed (2008) 176). This is confirmed by the existence of the concept of diminished responsibility, (a 'tussenposisie', according to A Kruger and VG Hiemstra Hiemstra : Suid Afrikaanse Strafproses 7ed (2010) 245), which is not a defence, but provides for reduction in sentence. The offender's mental and emotional state at the time of the commission of an offence may be affected by a variety of either pathological or non-pathological factors (S Terblanche Guide to sentencing in South Africa 2ed (2007) 198-199). In the latter instance factors such as provocation, rage or jealousy may influence the offender to the extent that his or her power of restraint or self-control, compared to a normal person, is substantially reduced.
Author Warren FreedmanSource: South African Journal of Criminal Justice 27, pp 466 –487 (2014)More Less
Section 1 of the Constitution of the Republic of South Africa, 1996 provides that the Republic is one sovereign democratic state founded on, amongst others, the principle of the 'rule of law'. This principle has been considered by the Constitutional Court on a number of occasions. In these cases the court has held that the principle of legality which forms a part of the rule of law imposes a number of obligations on the state.