South African Criminal Law Journal

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Latest documents

• Comment: Gambling law: Recent developments
• Policing the Onion Router (Tor) crypto-markets on the dark web: An analysis of South African investigatory powers

  Emerging financial technology (fintech), such as cryptocurrencies and privacy-enhancing technology (pets) such as the Onion Router (Tor), enable varying levels of anonymity or pseudonymity based on underlying encryption algorithms. These technologies are increasingly exploited by cybercriminals for nefarious purposes on the dark web. This has resulted in the so-called tor crypto-markets that facilitate 'digital organised crime.' Thus, albeit not inherently criminogenic, encryption constitutes a barrier to criminal investigation. This article discusses two specific methods that police use to investigate and prosecute criminals operating on the dark web, through the use of hacking tools in the context of: (1) online undercover cybersurveillance operations; and (2) remote search and seizure. These methods differ in both scope and complexity and, importantly, bear distinct legal, technical, and ethical consequences that have yet to confront South African courts. As a result, these methods, in the context of dark web investigations, have not previously been considered in South African literature, but have received significant analysis in the United States, the Netherlands, and Australia. These methods will be discussed in the context of South African investigatory powers in order to determine whether there is a legal basis for its operation.

• Recent Case: Criminal Procedure
• Measuring progress and plugging gaps: Towards a child-friendly criminal justice system in Zimbabwe

  This article takes stock of the progress made and challenges confronted by Zimbabwe in domesticating international child justice standards relating to general principles of children's rights, the minimum age of criminal responsibility, and pre-trial detention. It demonstrates that the country has largely incorporated general principles of children's rights and their implications for child justice norms, standards and practices at the domestic level. In addition, the article posits that the legislature should raise the minimum age of criminal responsibility to at least 14 years to harmonise domestic law with regional and international child law. In the context of pre-trial detention, it is argued that the constitutionalisation of the twin principles of detention as a measure of last resort and for the shortest appropriate period are designed to ensure that an alleged child offender is solely detained if there are no less restrictive means for securing the child's attendance during trial proceedings. It is also shown that pre-diversion assessments of child offenders enable key players in the justice system to craft individualised, evidence-based interventions that respond to the treatment needs of each child offender. Finally, the article reiterates that the state should urgently enact the Child Justice Bill, allocate more resources, and build relevant infrastructure for pre-trial, child-friendly justice to become a reality.

• Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

  The role of criminologists in South Africa and many other countries has been evolving and expanding over the years. Criminologists are increasingly involved in various phases of the judicial process, including the pre-trial, trial, and post-trial stages.[fn1] As a scientific discipline, criminology involves understanding the root causes of crime, its impact on society, and how to prevent and respond to criminal behaviour. However, it stands to reason that in making an informed and balanced contribution to a case in a court of law, the criminologist must familiarise themself with all aspects relevant to the case.[fn2] The current study focused on the perception of presiding officers about criminologists as expert witnesses in their courts during sentencing. This study explored whether presiding officers valued criminologists knowing, understanding and applying sentencing objectives in writing their reports. A qualitative inquiry was conducted to explore whether it is important for a criminologist to understand sentencing objectives in order to provide an overall and thorough report to the court. Semi-structured interviews were conducted with presiding officers from the regional and high courts in Bloemfontein. The findings suggest that presiding officers prefer to appoint a criminologist who understands and has broad experience of all sentencing objectives in South Africa to assist them in deciding on appropriate sentences. footnotes 1: T Petrus 'Anthro-criminology: An appraisal of the inter-disciplinary merits of South African criminology and anthropology over the last decade' (2020) 33 Acta Criminologica 12; SB Singh 'Criminology at the University of Kwazulu-Natal: Late 20th century to early 21st century' (2020) 33 Acta Criminologica 43. footnote 2: D Lambrechts and J Prinsloo 'The criminologist as a defence witness in court' (2002) 15(2) Acta Criminologica 11 at 17.

• Empowering justice: The evolving landscape of cellphone analysis in modern criminal investigations and evidentiary collection

  In the wake of rapid technological advancements, there has been a remarkable increase in the adoption of mobile devices, also profoundly altering the manner in which individuals use their cellphones. This technological shift, accompanied by increased functionality and popularity of cellphones, provides law enforcement agencies with new avenues for investigative approaches, notably in the realm of mobile forensics. This article explores mobile forensics as a crucial tool for gathering evidence in criminal investigations. Drawing from in-depth analysis, qualitative interviews with the South African Police Service (SAPS) investigators and detective branch commanders, digital forensic investigators/analysts, prosecutors from the National Prosecuting Authority (NPA), a cellphone record analyst, and an examination of local and international literature, the study underscores the significant role mobile forensics plays in effective crime investigation. It advocates for enhanced training of investigators to align with evolving technology, emphasising the need for law enforcement agencies, particularly the South African Police Service (SAPS), to adapt and advance their investigative techniques in the face of ongoing technological transformation. Ultimately, the article aims to demystify mobile forensic analysis, offering insights to aid South African investigators in refining their investigative practices.

• Recent Case: Sentencing
• Sharpening the subjective element of criminal liability in South African law

  South African criminal law holds to a conception of human beings as morally autonomous, which is consistent with the right to dignity. The individual is the foundation of society and law, and must not be treated as an object or instrument. The right to dignity is limited by a guilty verdict, given the punitive and stigmatising consequences which follow. The infringement of the right to dignity which follows conviction is unjustifiable, unless the finding of liability is based on the offender's control and choice. But a guilty verdict equally resonates with the right to dignity, by treating the offender as a responsible human agent. The basis for a guilty verdict is founded on blameworthiness. It follows that the subjective element of criminal liability is crucial in the just functioning of the assessment of criminal responsibility. Despite an earlier reliance on objective notions, following the pioneering work of JC de Wet, South African law has developed into a system of criminal responsibility based on a subjective, principled approach to liability, the 'psychological approach'. The justifications for, operation of, and opportunities for further refinement of this vital feature of substantive South African criminal law forms the fabric of this article.

• Psychoanalytic psychology, sleep medicine, and the law: Scientifically reviewing Oscar Pistorius’ culpable homicide/murder conviction

  In parasomnias (sleep disorders), parts of the brain are alert, functioning well, but other regions are not awake, not functioning. These mixed sleep/wake states compromise mental processes in ways that can be surprising, and sometimes dangerous to self and/or others. Possible parasomnia should be considered in relation to all violent, perplexing events that occur after individuals fall asleep. Increased familiarity with the scientific study of dreaming and sleep disorders augments mental health and legal practitioners' capacity to comprehend and assist. Expert testimony from these scientific fields can shift judicial focus from inappropriate punishment toward treatment and prevention, bringing enlightened justice, understanding, and relief to all parties. This article re-examines the controversial case of Olympic athlete, Oscar Pistorius, who killed his girlfriend, Reeva Steenkamp, during an episode of sudden arousal from sleep. Both the bail magistrate and the judge underscored major elements that made no sense in Pistorius' narrative. When these crucial anomalies are approached with knowledge of dreaming and parasomnia, they become comprehensible, meaningful, and potentially transformative with respect to judicial outcome. Invaluable insights from these scientific fields were not considered during Pistorius' trial. If they had been contemplated and found credible, the accused might have been found not criminally responsible. This possible miscarriage of justice might be reversed via appeal based upon these scientific principles. Sleep medicine and psychoanalytic psychology have made major judicial contributions[fn1]. These disciplines are indispensable for understanding perplexing legal cases. Without expert opinion from these scientific fields, miscarriages of justice may occur. Familiarity with these research findings is crucial for legal and mental health professionals[fn2]. This article reviews a well-known, controversial case through these empirical lenses. The strong possibility that parasomnia (sleep disorder) severely impaired this defendant's important cognitive processing capacity is presented. In such cases, non-pathological criminal incapacity (therefore acquittal) must be seriously considered in courts' efforts to achieve optimal justice.footnote 1: MR Pressman 'Disorders of arousal from sleep and violent behavior: the role of physical contact and proximity' (2007) 30 Sleep 1039; F Siclari et al 'Violence in sleep' (2010) 133 Brain 3494. footnote 2: R Cartwright, MW Mahowald and MA Cramer Bornemann whose contribution is acknowledged in B Willock The Wrongful Conviction of Oscar Pistorius: Science Transforms our Comprehension of Reeva Steenkamp's Shocking Death (2018)

• Recent Case: Law of evidence

Featured documents

• Criminal and procedural legal challenges of identity theft in the cyber and information age
• Considering parental alienation under the aegis of the criminal law

  Parental alienation conduct forms the focus of this article. It is distinguished from the parental alienation syndrome which identifies specific behavioural symptoms in children exposed to parental alienation. The harms caused by parental alienation conduct are investigated. The manner in which...

• Medical negligence as a causative factor in South African criminal law: Novus actus interveniens or mere misadventure?

  The aim of this article is to assess the validity and applicability of medical negligence as a novus actus interveniens, with reference to recent South African criminal case law. Such an assessment necessitates an analysis of the most important rules pertaining to causation in South African...

• Fingerprint evidence under scrutiny: Issues raised by six international forensic reports (Part 2)

  Part 1 of this article, separately published in 2019 (32(2)) SACJ 155, scrutinized the Mayfield Report and the NAS Report with regard to fingerprint evidence. This section, Part 2 of the article, specifically interrogates the 2011 Scottish Fingerprint Inquiry Report (SFI Report) (consisting of 750...

• Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (1)

  Malicious prosecution, along with wrongful arrest and unlawful detention (false imprisonment), is one of the foundational common law causes of action that vindicates breaches of personal liberty and human dignity rights. What, however, is not in constant discussion is the quantum of damages which a ...

• South Africa’s rape shield: Does section 227 of the Criminal Procedure Act affect an accused’s fair trial rights?

  Rape shield laws are a critical aspect of the protection of rape complainants during the criminal justice process. The rationale of rape shield laws is to protect complainants from having their sexual reputation or behaviour used to reduce their credibility, particularly as the inferences drawn are ...

• 2018 index
• Defining the contours of a ‘criminal gang’ and a ‘pattern of criminal gang activity’ under the Prevention of Organised Crime Act

  Before an accused can be convicted under Chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (POCA), two preliminary elements must be proven. These preliminary elements can be found under Chapter 1, and require the accused to be a gang member or active participant in a criminal gang and...

• Recent Case: Criminal procedure
• Disposal of criminal disputes by informal mediation: A critical analysis