South African Journal of Criminal Justice - Volume 28, Issue 1, January 2015

In August 2013 the South African government released the newly revised National Drug Master Plan 2013-2017. The plan is intended to provide a central reference for the country's drug regulation and elimination efforts. As this article documents, the plan is however riddled with internal inconsistencies and impractical resolutions. As a result, it will be extremely difficult to implement and unlikely to find utility in many South African cities and communities. The authors further argue that the plan has been designed in such a way that it absolves the government of any responsibility should it fail. It does so by subtly ensuring that blame for drug use can continue to be placed on the individual. This requires a punitive understanding of drug use, which is in direct contrast to the stated framework of the plan. As such, we argue that while the plan speaks the language of reform, it is actually far more concerned with continuing to treat drug regulation in South Africa as a matter of criminal justice.

This article seeks to understand the roles of the two adversarial parties involved in the presentation and testing of forensic scientific evidence in criminal proceedings in South Africa, and to predict the future of challenging expert evidence in developing countries. The traditional roles of parties to an adversarial criminal trial are reviewed, with specific focus on the practice of challenging forensic scientific evidence presented by the prosecution, as are developments in the American legal system with reference to the effectiveness of challenging expert evidence presented by the prosecution. The possible impact of these developments on the future constitutionality of legal representation as practised in South Africa, is also briefly considered. The importance of reliable forensic scientific evidence employed in criminal proceedings necessitates not only the presentation of accurate forensic evidence by both adversarial parties, but also the informed cross-examination of opposing experts. This, in turn, demands equality in the adversarial battle, which, as it currently stands, does not exist in developing countries such as South Africa.

On 1 April 2010 the South African Child Justice Act (CJA or the Act) commenced. The long title of the Act states, inter alia, that the purpose of the Act is 'to establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpinning the Constitution and the international obligations of the Republic'. The Act provides, inter alia, that a child who has committed any offence may be diverted from the criminal justice system. Case law has started emerging from South African courts dealing with some of the sections of the Act. The purpose of this article is to highlight how courts have interpreted or applied some of the sections of the Act.

This discussion explores the unique nature of gender-based violence and the need for courts to understand the intricacies in adjudicating these matters. The focus is on amicus curiae participation as a specific litigation strategy that could enable courts to focus on the relevant victims and their experience of violence. Specifically the amicus curiae participation in S v Zuma is considered as the matter is unique in its rejection of the relevant amici curiae participation focusing on the need and relevance of this method of participation in future criminal trials.

The case of S v Pistorius 2014 JDR 2127 (GP) has been minutely examined by various commentators and media pundits. The classic tale of a hero fallen from grace was irresistible to many throughout the world, and every aspect of the trial was subjected to the scrutiny of an enthralled viewership, and has been analysed and reanalysed for the benefit of the watching public. It is perhaps inevitable that the judgment in the trial proved to be something of a let-down for many. Passions have been inflamed, and strident views have been expressed, both in favour of, and against, the accused in respect of the question of criminal liability and the appropriateness of sentence. The ensuing culpable homicide conviction, resulting in a short-term prison sentence that falls to be converted to correctional supervision, has been robustly criticised. As the saga is not yet complete, in that an appeal is in the offing, this matter will inevitably be revisited in the midst of a renewed storm of public and media interest. This note will thus merely seek to briefly note certain aspects of the high court judgment that are of interest in the context of substantive criminal law.

A number of recently reported cases deal with issues of prosecutorial discretion, the duty resting upon prosecutors to protect the public interest and the proper formulation of charges by prosecutors. Unfortunately in all the cases discussed in this regard the courts made negative findings about the conduct of the National Prosecuting Authority and its representatives. Section 179(2) of the Constitution of the Republic of South Africa, 1996 empowers the National Prosecuting Authority to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. The decision to prosecute or to decline to prosecute is a step that may affect accused persons and their families, victims, witnesses, law enforcement agencies and the public. The prosecutor must act fairly towards the accused and dedicate himself or herself to the achievement of justice (S v Rozani; Rozani v Director of Public Prosecutions Western Cape 2009 (1) SACR 540 (C) at 549f-550d; on the ethical duties of prosecutors see Du Toit et al Commentary on the Criminal Procedure Act (-2014) 1-45-1-48).

The applicants in the case of Savoi v National Director of Public Prosecutions 2014 (5) BCLR 606 (CC) (Savoi) were charged with various offences, including fraud, racketeering, corruption and money laundering, in terms of the Prevention of Organised Crime Act 121 of 1998 (POCA). They launched a constitutional challenge to various provisions in POCA. The prosecution was stayed pending the finalisation of the constitutional challenge. This discussion focuses only on the challenge to s 2(2) of POCA.

This review considers judgments on sentencing reported during the first quarter of 2015.