South African Criminal Law Journal
- Publisher:
- Juta Journals
- Publication date:
- 2021-07-05
- ISBN:
- 1011-8527
Description:
Issue Number
- No. , October 2022
- No. , July 2022
- No. , February 2022
- No. , November 2021
- No. , July 2021
- No. , March 2021
- No. , November 2020
- No. , July 2020
- No. , September 2019
- No. , September 2019
- No. , September 2019
- No. , September 2019
- No. , September 2019
- No. , September 2019
- No. , September 2019
- No. , August 2019
- No. , August 2019
- No. , August 2019
- No. , August 2019
- No. , August 2019
Latest documents
- Recent Case: Sentencing
- Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (2)
The discussion of the South African cases involving wrongful police shootings and the damages awarded in that regard formed the subject of the discussion in the first part of this series. That discussion continues in the current part two which winds up with the analysis of the cases from Lesotho and Malawi involving injuries caused by the use of firearms by police officers and other security agents. The deprivation of personal liberties and physical and other injuries caused by police shootings may appear similar to the heads of damages recoverable in these jurisdictions such that guiding principles are uniformly applied. At the end of the day, the amounts finally awarded differ from jurisdiction to jurisdiction as the courts in the smaller jurisdictions of Southern Africa often emphasise the disparities between their economies and the more developed South African economy such that the amounts finally awarded reflect such socio-economic disparities.
- Comparing sentencing for robbery with Strafzumessung für Raub
- Clarity, consistency, and community convictions: Understanding the defence of consent in South African criminal law
- The criminal jurisdiction of the Seychelles Employment Tribunal
The Seychellois Employment Tribunal was established under s 73A of the Employment Act (the Act). Section 6(3)(1) of Schedule 6 to the Act provides that 'the Tribunal shall have exclusive jurisdiction to hear and determine employment and labour related matters'. Under the Act, employment and labour matters can be divided into two categories: civil and criminal. Section 76 of the Act provides for employment and labour-related offences. The Tribunal started operation in November 2008. Between 3 December 2008 (when the Tribunal handed down its first decision) and 1 December 2021 (when the research for this article was conducted) the Tribunal received 2,478 civil cases and 172 criminal cases. The author studied the criminal cases/files and on the basis of that study. The aim of the study is to illustrate how the Tribunal has interpreted and/or applied s 76 of the Act when dealing with the following issues: the offences under the Act; the prosecution of the offences under the Act; the right to a fair trial; the burden(s) of proof under s 76 of Act; the prosecution of legal persons/ companies before the Tribunal; and penalty and sentencing issues. The author argues, inter alia, that the Tribunal should respect the principle of corporate legal personality when dealing with juristic persons accused of committing offences; the reverse onus under s 76(3) of the Act is not unconstitutional; during sentencing, the Tribunal should clearly distinguish between mitigating factors that are applicable to juristic persons and those applicable to natural persons; and that the Attorney-General does not need the consent of the competent officer before he/she can institute a prosecution before the Tribunal.
- Recent Case: Law of evidence
- Recent Case: Criminal procedure
- Recent Case: General principles of criminal law
- Recent Case: Criminal procedure
- The importance of explicit reasons when overturning a conviction: Non-compliance with the competency test or the requirement to admonish complainants
There are numerous cases in which magistrates failed to properly administer the competency test or to admonish complainants in terms of s 164(1) of the Criminal Procedure Act 51 of 1977. In many of these cases, the magistrates nonetheless found the accused guilty based on the inadmissible evidence of the complainants. On review or appeal, however, the higher courts set the decisions of the magistrates aside because the magistrates' decisions were based on the unreliable evidence of the complainants. While the rulings of the higher courts were legally sound, if not explained explicitly and thoroughly, they may appear unjust, clinical, harsh, inconsiderate, or even nonsensical. Such matters involve the fundamental rights of complainants and accused persons. They also result in severe consequences for complainants and accused persons, and they involve vulnerable groups such as children and mentally-ill individuals. It is therefore important that the higher courts reviewing the procedural errors of magistrates provide explicit and thorough explanations for their findings. To avoid perceptions that the decisions of the higher courts are unjust, the rulings of the courts should expressly acknowledge and address the unfortunate consequences suffered by both complainants and accused persons when a magistrate's conviction is unsustainable because it was based on evidence that was not properly admitted. Acknowledging and addressing the injustices may help courts provide reasons for their decisions that go beyond merely stating that the complainants' evidence is excluded because it is unreliable. Explicit reasons in such instances would go a long way in engendering and maintaining public confidence in the judicial system and enhancing public scrutiny of the current legal position.
Featured documents
- 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...
- 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 ...
- 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...
- Special Issue: From discretionary to structured sentencing in Uganda
In August 2010, the then Chief Justice, Benjamin Odoki, acknowledged the existence of unwarranted disparities across Ugandan sentencing. Justice Odoki then proceeded to appoint a Taskforce to develop sentencing guidelines for magistrates and judges in Uganda. In 2013, the Taskforce issued Uganda's...
- 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 ...
- 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...
- Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa
Section 4(1)(a) of the Refugees Act disqualifies from refugee status any person who is alleged to have 'committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes'. The Implementation of the Geneva...
- 2018 index
- 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...
- Disposal of criminal disputes by informal mediation: A critical analysis