South African Criminal Law Journal

vLex
Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
1011-8527

Description:

This bilingual publication (English and Afrikaans) provides an arena for discussion of issues affecting the criminal justice system. It is an accredited, specialist legal journal publishing articles, comments, surveys of recent cases and book reviews in the field of criminal justice, with a particular emphasis on Southern Africa. The focus of the journal is criminal law, criminal procedure, evidence, international criminal law and criminology.

Issue Number

Latest documents

  • Reckless Indifference or Legal Intention? A Doctrinal and Jurisprudential Analysis of S v Siyaya and the Evolution of Dolus Eventualis in South African Criminal Law

    The 2024 high court judgment in S v Siyaya presents a significant precedent in the realm of road traffic fatalities in South African criminal law. This article provides a comprehensive analysis of the judgment, focusing on the evidentiary findings, the application of dolus eventualis, and the implications for criminal liability in transport-related deaths. Dolus eventualis was central to the court's reasoning, and represents a departure from the long-standing SCA decision in S v Humphreys. The court had to determine whether Siyaya foresaw the possibility of a fatal outcome and reconciled himself to that risk. The judgment delves into the nuances of dolus eventualis, distinguishing it from mere negligence or recklessness. Underscoring the need for a thorough examination of the accused's state of mind and the foreseeability of harm, the case sets a precedent for holding individuals criminally liable for transport-related deaths when their actions exhibit a clear intent to disregard the safety of others. This article undertakes a doctrinal and jurisprudential analysis of the judgment, with a focus on the court’s application of dolus eventualis and its departure from the reasoning in S v Humphreys. The article also explores the theoretical and practical implications of the judgment, engaging with case law and scholarly commentary, and argues that the court in Siyaya correctly applied inferential reasoning to establish legal intention. The analysis is situated within the broader discourse on the distinction between dolus eventualis and luxuria, and the evolving standards of criminal liability in cases of extreme recklessness on South African roads. Siyaya reinforces the principle that individuals who consciously disregard the safety of others can be held criminally liable for their actions. This article provides an analysis of the legal reasoning, evidentiary findings, and implications of the judgment, contributing to the ongoing discourse on criminal liability and transport safety.

  • Recent Case: General Principles and Specific Offences

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  • Recent Case: Sentencing and Execution of Sentences

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  • Recent Case: Criminal Procedure

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  • Fitness-to-Stand Trial and Disability Discrimination: An International Criminal Justice Appraisal in the Félicien Kabuga Case

    The right to a fair trial is a fundamental element of international criminal justice, guaranteeing that every accused person has the mental and physical ability to effectively participate in their defence. When an accused’s fitness to stand trial is affected by age or disability, complex legal and ethical issues emerge between the pursuit of justice and protecting individual rights. This  article critically explores these issues through the case of Félicien Kabuga, the alleged financier of the 1994 Rwandan genocide, whose advanced age and cognitive decline have sparked debates about his fitness to stand trial before the International Residual Mechanism for Criminal Tribunals. The analysis questions whether continuing proceedings against Kabuga aligns with the right to a fair trial under international law and the principles of non-discrimination outlined in the Convention on the Rights of Persons with Disabilities. Using jurisprudence from international and regional human rights bodies, the article assesses how international criminal tribunals have interpreted fitness to stand trial and how disability considerations have been incorporated into procedural safeguards. It argues that current international criminal law frameworks are insufficiently addressing the link between disability rights and criminal accountability, potentially leading to indirect discrimination against accused persons with disabilities. The article contributes to the debate by proposing a normative and policy-based framework for integrating disability-sensitive standards into international criminal procedures. It advances the debate on procedural fairness by connecting the equality obligations of the Convention on the Rights of Persons with Disabilities’s with the operational practices of international tribunals. In doing so, it offers new insights into how global justice institutions can balance accountability for atrocity crimes with human rights norms on disability, inclusion, and dignity in the justice process.

  • Prosecuting Human Trafficking at the International Level: A Case for Rome Statute Reform

    Human trafficking remains one of the most pervasive forms of modern exploitation, affecting millions globally, yet it lacks explicit recognition as a distinct international crime under the Rome Statute. Current legal frameworks, including the Rome Statute of the International Criminal Court, partially address trafficking through proximate categories such as enslavement or sexual slavery. However, these classifications often require proof of ownership-like control, fail to capture the full spectrum of trafficking practices, and leave significant groups of victims without recourse to justice. This article examines the definitional, historical, and jurisprudential distinctions between trafficking and slavery, evaluates the Rome Statute's existing categories of crimes against humanity, and highlights the limitations of relying on legal proxies. Drawing on the Palermo Protocol and international case law, the article argues for the inclusion of trafficking as a standalone crime under the Rome Statute. It proposes specific amendments to article 7 and discusses the procedural and political challenges inherent in such reform. Recognising trafficking explicitly would enhance the International Criminal Court's capacity to prosecute human trafficking, provide coherent legal protections for victims, and reinforce the international community's commitment to combating modern slavery in all its forms.

  • Comparative View on the Use of Facial Recognition Technology by Law Enforcement in South Africa

    The growing use of facial recognition technology (FRT) by law enforcement in South Africa presents urgent legal, ethical, and governance challenges. While FRT is often promoted as a tool to enhance safety and crime prevention, its deployment reveals deep tensions between technological efficiency and constitutional rights to privacy, dignity, and equality. This article examines the operation of contemporary FRT systems – rooted in machine learning and high-dimensional data analysis – highlighting their opacity and potential error and bias. It further explores the phenomenon of function creep, where surveillance technologies expand beyond their original intent, often without public awareness or regulatory oversight. Drawing on South African case examples, including Vumacam’s CCTV network and biometric data collection under the Independent Communications Authority of South Africa’s (ICASA) proposals, the article situates these developments within comparative frameworks such as the European Union’s Artificial Intelligence Act. It argues that South Africa urgently requires a comprehensive, human rights-based regulatory framework to prescribe the specific circumstances and safeguards for the law enforcement use of FRT. Such a framework would ensure proportionality, transparency, and accountability, thereby preventing technological advancements from outpacing legal protections.

  • Recent Case: Sentencing

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  • Recent Case: Criminal Procedure

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  • Recent Case: Law of Evidence

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