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- Volume 22, Issue 3, 2009
South African Journal of Criminal Justice - Volume 22, Issue 3, 2009
Volume 22, Issue 3, 2009
Source: South African Journal of Criminal Justice 22, pp 305 –326 (2009)More Less
One of the most vivid examples of positive identification that proved to be wrong, must be the case of Jennifer Thompson. In 1984 she was a college student when she was raped in her own home. During the ordeal she decided to concentrate on every detail of the rapist in order to identify him later. She took every opportunity to study his face as they moved through the house in several rooms where the light was on. She identified Ronald Cotton from police photographs and later during an identity parade : 'I identified my attacker. I knew this was the man. I was completely confident. I was sure.' But she was wrong. Even when Bobby Poole confessed to the rape and was shown to her, her response was, 'I have never seen him in my life'. Eleven years after being incarcerated, Ronald Cotton was exonerated by DNA evidence that showed that another man with similar features was the perpetrator.
Author Allison MellonSource: South African Journal of Criminal Justice 22, pp 327 –352 (2009)More Less
The increasing prevalence of white-collar crime should prompt South African courts and legislators to consider the efficacy of sentences for these offenders. This article will define white-collar crime, discussing its theoretical ambiguities. It will then focus on the current sentencing of white-collar offenders in South Africa. A sentencing study on white-collar crime in the United States reveals that courts take account of various factors concerning the nature of the act and the actor. South African courts justify their sentencing decisions on similar factors, but also emphasise deterrence. Deterrence should not be given undue weight as the constitutional principle of proportionality must guide the courts. Imprisonment tends to be the preferred sentence for white-collar criminals, but there are constitutional, empirical and pragmatic issues with imprisonment, particularly the overcrowding of prisons. The courts should instead utilise community sentences for white-collar criminals who are not violent and can contribute their professional skills to society. South Africa requires greater resources for the administering of community sentences, and possibly, new legislation, such as the United Kingdom's Criminal Justice Act of 2003. Consideration of foreign legislation combined with increased resources would assist the effective implementation of community sentences for white-collar criminals in South Africa.
The limits of judicial law-making in the development of common-law crimes : revisiting the Masiya decisionsAuthor Rapelang RamosaSource: South African Journal of Criminal Justice 22, pp 353 –370 (2009)More Less
Since the Constitutional Court judgment of Masiya v DPP, a number of articles have been written that lament the failure of the Court to extend the common-law definition of rape to include non-consensual penile penetration of the male anus. It is assumed that the obligation of the courts to develop common-law crimes in terms of s 39(2) of the Constitution permits the judicial extension of the proscribed ambit of such crimes. This article aims to demonstrate that the courts' inherent power to develop common-law crimes does not include the power to extend the proscribed ambit of such crimes, and neither does s 39(2) confer such power. The manner in which the three Masiya forums purported to develop the definition of rape constitutes an unconstitutional exercise of judicial power as it violates the rule of law and the separation of powers.
Author Mervyn E. BennunSource: South African Journal of Criminal Justice 22, pp 371 –390 (2009)More Less
The effect of the statement by the National Director of Public Prosecutions that though there was a prima facie case that a named individual was guilty there would be no prosecution as it did not appear that there was 'a winnable case' is considered. The nature of the relationship between the National Executive and the National Prosecuting Authority as this appears from the Constitution and the National Prosecuting Authority Act is examined. A distinction is drawn between a decision to prosecute and a decision not to prosecute, and how these relate to the overall use of the prosecutors' discretion is considered. It is suggested that a re-designed NPA should include provision for a Law Officer filling the position known as the Attorney General in other Commonwealth jurisdictions.
Source: South African Journal of Criminal Justice 22, pp 391 –402 (2009)More Less
South African crime statistics show a general decrease in the commission of serious crimes and a proportional increase in minor crimes. The challenge for the criminal justice system is to devise effective measures that could reduce the commission of minor crimes. There is a strong belief that minor crimes could be effectively dealt with through increased levels of community participation in the criminal justice system. The current perception in South Africa is that the public is reluctant to get involved in the criminal justice system, thus making it difficult for the criminal justice system to successfully deal with minor crimes.
Textual and empirical research was conducted in the Criminal Justice Departments of South Africa and the San Diego County of the United States of America. This study sought to search for practices or methods that would forge greater cooperation between the public and the criminal justice system. It revealed that San Diego's structured and state run victim / witness assistance programmes encourage people's involvement in the criminal justice system and has a positive impact in dealing with the reporting of crime in general.
A constitutional perspective of police powers of search and seizure : the legal dilemma of warrantless searches and seizuresAuthor Vinesh BasdeoSource: South African Journal of Criminal Justice 22, pp 403 –418 (2009)More Less
The subject matter of this article is an evaluation of the powers granted to the police to conduct searches and seizures in the investigation and suppression of crime. This article will examine the extent and efficacy of those powers from a legal perspective, in the light of constraints imposed by the Constitution of the Republic of South Africa. A pervasive theme is the question of whether an appropriate balance can ever be achieved between the inherently conflicting interests of the public, who place a premium on crime control, and of the individual, whose focus is the protection of personal privacy and autonomy. In recent times police powers of search and seizure have been extensively questioned in South African courts. The inherent purpose of this article is to evaluate the legal provisions of the Constitution of the Republic of South Africa, the Criminal Procedure Act, and the South African Police Service Act in relation to search and seizure, as well as the question of whether searches and seizures without a warrant that are not incidental to arrest, are consistent with the spirit, object and purport of the South African Constitution. The legal consequences of obtaining evidence in violation of a right in the Bill of Rights will also be examined, and legal principles from other countries will be compared to the South African context. In this article I will also propose recommendations drawn from cases and legislation in South African law, and from foreign jurisdictions.
Negotiating the archive : Amnesty, justice and memory : review article of Antje Du Bois-Pedain Transitional Amnesty in South Africa : review articleAuthor A.J. Barnard-NaudeSource: South African Journal of Criminal Justice 22, pp 419 –432 (2009)More Less
This article represents an encounter between Antje Du Bois-Pedain's recent Transitional Amnesty in South Africa and Jacques Derrida's Archive Fever. I argue that Du Bois-Pedain's work is magisterial in the sense that relates it to the meaning of the archive identified in Derrida's text. Taking the Derridean argument a step further I aim to illustrate that this text-as-archive reveals a glimpse of its own death drive - it is conscious of its unconscious. I argue that the death drive of the archive is here ultimately resisted / countered precisely by Du Bois-Pedain's willingness to confront the outside of the archive that is this work.
Judicial discretion to exclude evidence in terms of s 35(5) of the Constitution : S v Hena 2006 (2) SACR 33 (SE) : commentsAuthor Wouter De VosSource: South African Journal of Criminal Justice 22, pp 433 –440 (2009)More Less
In this case the court was called upon to exclude certain evidence against one of the accused in terms of s 35(5) of the Constitution of the Republic of South Africa, 1996. This section provides as follows :
'Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.'
It will be apposite, before discussing the present case, to do a brief analysis of s 35(5) and to refer to s 24(2) of the Canadian Charter of Rights and Freedoms, upon which the former section appears to be modelled (Steytler Constitutional Criminal Procedure (1998) 34; S v Naidoo 1998 1 SACR 479 (N) at 527g).
Author Max Du PlessisSource: South African Journal of Criminal Justice 22, pp 441 –446 (2009)More Less
Recent events have brought South Africa's relationship with the International Criminal Court (ICC) into sharp focus. The events arise principally from a decision by the ICC on 4 March 2009 to issue an international arrest warrant for President Omar al-Bashir of Sudan for grave crimes committed by his government's officers and soldiers. That warrant was issued after the Security Council of the United Nations in 2005 decided to refer the crimes committed in Sudan to the ICC for investigation and possible prosecution.
Author Louise JordaanSource: South African Journal of Criminal Justice 22, pp 447 –453 (2009)More Less
The approach that the application of the de minimis principle is rather a decision of the court to acquit on the ground of triviality than a finding of justification excluding the unlawfulness of conduct is well illustrated by the facts in S v Visagie 2009 (2) SACR 70 (W). A mechanic and a customer had become involved in a verbal altercation concerning repairs to the latter's car. After a barrage of verbal abuse by the customer directed at the mechanic, including threats to assault him, the mechanic, who was 'totally humiliated' and 'very angry' invited the customer, in somewhat cruder terms, to go ahead and execute his threats. The customer then went ahead and pushed the mechanic away but, unexpectedly, he (the mechanic) tripped over a low bed lift and fractured his right wrist. The customer was charged with assault and convicted. In the subsequent appeal against conviction, the court made an in-depth inquiry into judicial pronouncements involving relatively trivial assaults.
Author Managay ReddiSource: South African Journal of Criminal Justice 22, pp 453 –463 (2009)More Less
The Prevention of Organised Crime Act 121 of 1998 (POCA), provides in s 2(4) that a person can only be charged with committing an offence contemplated in subsection (1) of the Act if such a prosecution is authorised in writing by the National Director of Public Prosecutions (NDPP). In National Director of Public Prosecutions v Moodley and Others 2009 (1) SACR 461 (SCA), pending commencement of their trial in the regional magistrates' court, the respondents had launched an application for orders declaring the three racketeering charges brought against them under POCA to be unlawful and to be set aside. The basis of their application was that they had been charged with racketeering prior to the appellant's furnishing of the necessary authorisation to prosecute in terms of s 2(4) of POCA.
Author Nicci Whitear-NelSource: South African Journal of Criminal Justice 22, pp 463 –471 (2009)More Less
In the case of S v Rozani; Rozani v Director of Public Prosecutions, Western Cape and others 2009 (1) SACR 540 (C), the appellant was convicted of the rape and attempted rape of his stepdaughter. The High Court was highly critical of the role played by both the prosecutor and the Legal Aid defence attorney. The accused pleaded guilty to all the charges against him, on the basis of what was later found to be his incorrect understanding of the term rape. The prosecutor had in his possession a J88 medico-legal form in which the doctor stated plainly that the complainant's hymen was intact, and that she was virginal.
Author Warren FreedmanSource: South African Journal of Criminal Justice 22, pp 471 –483 (2009)More Less
In S v Hoho 2009 (1) SACR 276 (SCA), the appellant was convicted in the Bisho High Court on 22 counts of criminal defamation and sentenced to three years' imprisonment, suspended for five years. In addition, he was also sentenced to five years' correctional supervision. Following his conviction and sentence, the appellant applied for leave to appeal to the Supreme Court of Appeal. When it granted him leave to appeal, the Court indicated that there were only two issues which needed to be determined : (1) whether the crime of defamation had been abrogated by disuse; and, if not, (2) whether the crime of defamation was consonant with the Constitution.