Dissertations / Theses on the topic 'Criminal procedure, South Africa'

This thesis dealt with the constitutionality of the provisions of the Criminal Procedure Amendment Act, 2003 (Act 42 of 2003), pertaining to the leave requirement and petition procedures in respect of appeals against conviction, sentence or orders of the lower courts.

Legislation regulating minimum sentences in South Africa was re-introduced by sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which came into operation on 1 May 1998. These provisions were regarded as a temporary measure to be effective for two years, where after they were extended from time to time. After they had been extended for several times, section 51 was rendered permanent on 31 December 2007 by the Criminal Law (Sentencing) Amendment Act 38 of 2007. At the same time sections 52 and 53 were repealed by the same Act. Minimum sentence legislation was the result of a call by the community for heavier penalties and for the offenders to serve more realistic terms of imprisonment. There was also a general dissatisfaction about the perceived leniency of sentences imposed by the courts for serious crimes. During 1996 and in the wake of these concerns the Minister of Justice requested the South African Law Reform Commission to investigate all aspects of sentencing in South Africa. A Project Committee chaired by a judge of the High Court was appointed and it operated from the late 1996 to March 1998. Minimum sentences for certain serious crimes were one of the options to be investigated by the Project Committee. Consequent to this the Criminal Law Amendment Act 105 of 1997 was promulgated with effect from 1 May 1998. The legislature intended this Act to defer criminal activity, to avoid disparities in sentencing and to deal harshly with perpetrators of serious offences. The subsequent amendments to the Act included the granting of jurisdiction to the Regional court to pass life imprisonment, an automatic right of appeal against life imprisonment in respect of a juvenile accused and identification of circumstances that do not constitute substantial and compelling circumstances. Judicial discretion and departure from prescribed minimum sentences had initially presented a problem regarding its interpretation in a variety of cases in our courts. Eventually our courts came up with a clear interpretation of the meaning of the phrase substantial and compelling circumstances. This research project will analyze the provisions of the Criminal Law Amendment Act 105 of 1997 with regard to minimum sentences for certain serious offences. In the process case law and other literature will be discussed regarding the interpretation of minimum sentence provisions in the Act. Recommendations for legislation which will cover the aspect of sentencing on a wider scale are made.

The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa.<br>Abstract

Thesis (LLM)--Stellenbosch University, 2013.<br>Bibliography<br>ENGLISH ABSTRACT: Plea bargaining describes the act of negotiating and concluding agreements in the criminal procedure. Usually the prosecutor and the accused agree that the accused will plead guilty to the charge brought against him in exchange for some concession from the prosecution. The bargain is not limited to the presented subject. Agreements can contain the non-prosecution or reduction of charges, specific terms of punishment, conditions of probation and much more. In many countries the vast majority of criminal cases are disposed by way of bargaining. Plea bargaining breaches with the concept of a conventional trial and consequently clashes with well-known fundamental principles of the criminal procedure. Moreover, bargaining before criminal trials strongly implicates the constitutionally secured rights of the accused as well as of the public interest. Although plea bargaining is broadly criticized for its implications on essential rules and principles, the use of the practice is widespread. There are clear benefits to the participant, such as to avoid a lengthy trial with an uncertain outcome. South Africa, as a legal system with roots in the common law, adopted the procedure in 2001 with the implementation of s 105A into the Criminal Procedure Act. The German legislature in 2009 decided to regulate what until then had been informal practice by inserting several rules into the German criminal procedure, amongst which s 257c contains the main provisions. The implementation of bargains into the German law has produced tensions particularly due to the inquisitorial basis of the criminal procedure that stands in civil law tradition. This thesis evaluates how South African and German provisions on plea bargaining differ, i.e., on which different backgrounds they are based on, how the bargain procedures are construed and to what extent statutory plea bargaining in both legal systems displaces informal traditional agreements. The comparison is enriching under the aspect that both countries implemented the bargain procedure but had to place them on fundamentally different grounds. Having presented the grounds that motivated the research (Chapter I.), the origins of plea bargaining in general as well as the legal development toward the present statutory provisions in both countries are examined (Chapter II.). The bargain procedures are compared in detail (Chapter IV.). A large part focuses on particular problem areas and how both legal systems cope with them (Chapter V.). The result of the research is summarized in a conclusion (Chapter VI.).<br>AFRIKAANSE OPSOMMING: Pleitonderhandeling kan beskryf word as die proses van onderhandel en die aangaan van ooreenkomste in die strafproses. Die vervolging en die verdediging sal gewoonlik ooreenkom dat die beskuldigde skuldig sal pleit in ruil vir een of meer toegewings deur die vervolging. Ooreenkomste kan insluit die nie-vervolging of vermindering van klagte, spesifieke aspekte van vonnis, voorwaardes van parool en talle meer. In ‘n hele aantal lande word die oorgrote meerderheid van sake afgehandel by wyse van pleitooreenkomste. Dit is egter duidelik dat pleitooreenkomste in konflik is met die konsep van ‘n gewone verhoor en is gevolglik ook in konflik met van die grondbeginsels van die strafprosesreg. Dit raak ook die grondwetlike regte van beskuldigdes en die belange van die samelewing. Ten spyte van hierdie kritiek en meer, is die praktyk van pleitonderhandeling wydverspreid. Daar blyk besliste voordeel te wees vir die deelnemende partye, byvoorbeeld die vermyding van lang verhore met onsekere beslissings. Suid-Afrika (met ‘n sterk gemeenregtelike tradisie) het die praktyk van pleitonderhandeling formeel en per statuut in 2001 aanvaar, met die aanvaarding en invoeging van artikel 105A in die Strafproseswet, 1977. Die wetgewer in Duitsland het in 2009 besluit om die informele praktyk van pleitonderhandeling te formaliseer met die invoeging van sekere bepalings in die Duitse strafproseskode. Hierdie invoeging het sekere spanning veroorsaak in die Duitse strafproses, veral weens die inkwisitoriese tradisie in daardie jurisdiksie. Hierdie tesis evalueer die Suid-Afrikaanse en Duitse benaderings tot pleitonderhandelinge, hoe dit verskil, die verskillende regskulturele kontekste waarbinne dit plaasvind, en die mate waartoe pleitonderhandeling in beide sisteme informele ooreenkomste vervang het. Die vergelykende ondersoek bevind dat beide stelsels die pleitooreenkoms ingestel het, maar dit moes doen mvn fundamenteel verskillende gronde. Hoofstuk I (die motivering vir die studie), word gevolg deur ‘n historiese ondersoek (Hoofstuk II). Die verdere hoofstukke fokus op die regsvergelykende aspekte en die gevolgtrekkings word in Hoofstuk VI uiteengesit.

In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.

The process of extradition is a vital component of International Criminal Law as a means of ensuring the suppression and prevention of international crimes. It is the internationally accepted method used by states to surrender an offender back to the state where the alleged offence was committed so that such offender can be tried and punished. Without such process, and with the ease of modern global travel, offenders would, in all likelihood be able to escape prosecution and punishment. Most organized democratic societies recognize that the suppression of crime is necessary for peace and order in society and that extradition is an effective tool to be used to bring to justice a fugitive attempting to evade the law by fleeing to another country. What follows is a discussion, firstly on the theory of extradition and secondly on the effect that human rights has had on the law of extradition. The theory of extradition involves an analysis of extradition from its ancient roots to its position in society today. With regard to extradition in South Africa, reference is made to the various periods of the country’s history. The colonial era before South Africa acquired Republican status in 1961 is referred to in order to establish a basis for the present law of extradition in South Africa. The period during the apartheid era after achieving Republican status in 1961 is discussed in order to show how and why South Africa moved away from its common law roots based on English Law. This era is also of importance as it led to the introduction of the present Extradition Act 67 of 1962. Finally the current position spanning from 1994 to the law as it stands in South Africa today, as influenced by the introduction of Constitutional law, is examined. The rule on non-inquiry is also examined in order to compare the traditional approach by states, where state sovereignty was of paramount importance, with the modern trend of emphasis being placed on fundamental human rights. The methods in terms of which extradition is accomplished, both in South Africa and internationally is also discussed. Such reference to the theory and nature of extradition is done to provide general background on the complex issue to be discussed. The crux of the treatise relates to the impact that the rise in status of fundamental human rights has had on the extradition process. Reference will be made to aspects relating to the protection of the offender’s procedural rights as well as to the protection of the individuals right to life, dignity and bodily integrity. Such examination will refer to the position in South African law as well as the position on the international front. Attention is given to developments in case law as well as to how the courts approach the tension between extradition and human rights both locally and internationally. Finally, in conclusion it is submitted that the extradition process is the most effective procedure available to return an offender to the state seeking his prosecution. The process has however, in modern times adapted to uphold the rights of the offender whose return is requested. This can be seen from the provisions included in recent treaties and conventions, most notably the European Convention on Extradition to which South Africa became a party in 2003. Extradition is clearly concerned with the balancing of the offender’s human rights and the need for effective enforcement of criminal law.

The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.

The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.

The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.

Generally the Courts have a discretion to impose sentence. Violent crime was rampant in South Africa. The response of the legislature in dealing with crime was to enact legislation in 1997 like sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997 which prescribe severe mandatory sentences for a large number of serious offences like murder, rape and armed robbery. This legislation come into effect on 1 May 1998 and was to have effect for two years. The President could with the concurrence of Parliament by proclamation extend its operation for one year, that was in fact done. The latest extension of the Criminal Law Amendment Act 105 of 1997 was for a further two years making the minimum sentence provisions valid until 30 April 2005. The Courts did not like these mandatory sentences because of the limitation it places on judicial discretion and dealt with this legislation that limited their judicial discretion restrictively in order to defend their sentencing discretion. Although the Criminal Law Amendment Act of 105 of 1997 was held not to be unconstitutional the Courts stll sought to give it a narrow interpretation. This research paper include an outline of the Criminal Law Amendment Act<br>the Constitutional challenges that were brought against the Criminal Law Amendment Act<br>the judicial interpretation of the Criminal Law Amendment Act as well as the applicability of the Criminal Law Amendment Act to District Courts and juvenile ovenders<br>the procedural requirements that must be complied with in the Criminal Law Amendment Act and its consequences if not complied with. This paper examined how the Courts defined substantial and compelling circumstances, the approaches adopted by the Courts and when deviation from the Criminal Law Amendment Act can take place. It also include the challenges posed by mandatory minimum sentence legislation as well as recommendations for the improved implementation of the Criminal Law Amendment Act.

The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.

Thesis (LLM. (Labour Law)) --University of Limpopo, 2014<br>This research focuses on the application of the double jeopardy principle in labour law, section 188(1)(a (b) of the Labour Relations Act 66 of 1995, (herein the LRA) which provides that the dismissal is unfair if the employer fails to prove that the reason for the dismissal is fair and was effected in accordance with a fair procedure. The first point which I would explain is the meaning of double jeopardy and whether it is applicable in labour law. The research articulates that the double jeopardy principle applies to labour law and enumerates ways it can be applied. The South African courts, in particular, the Labour Court and the Labour Appeal Court have delivered several judgements on the double jeopardy principle. These cases will be critically discussed in detail. Comparison will be made with foreign labour law jurisprudence on the double jeopardy principle, particularly in Australia and the United States of America.

This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.

Magister Legum - LLM<br>Section 105A of the Criminal Procedure Act is unconstitutional with regard to its failure to extend benefits to an unrepresented accused. Unlike a represented accused, an unrepresented accused cannot benefit from section 105A. The only recourse available to him or her is to enter a plea of guilty under section 112 of the Criminal Procedure Act. This plea of guilty does not offer him the benefits under section 105A. This causes the section to operate unfairly against the unrepresented accused based on his/her failure to secure legal representation. This continued operation of section 105A infringes on the rights of an accused by not affording this protection to the accused. This is in terms of a right to equality before the law, freedom from discrimination and what constitutes a justifiable limitation under section 36 of the Constitution. South Africa has ratified or acceded to international and regional treaties which require, inter alia that the right to equality before the law is respected. This requires a model framework to be put in place to ensure that unrepresented accused can benefit from section 105A. An evaluation of the viability of adding the unrepresented accused to the protection under section 105A is done. This is informed by experiences from other jurisdictions, which aid the need for reform.

Thesis (LLM)--Stellenbosch University, 2005.<br>ENGLISH ABSTRACT: In 2002 the South African Law Commission published a report in which amendments to the existing rules of criminal procedure and evidence were proposed. A number of these recommendations have since been included in a Bill that was tabled before Parliament in 2003. The proposed amendments largely reflect values which underlie the "Victims' Rights" movement. The aim of this thesis is to consider the possible influence of these amendments on the constitutionally guaranteed fair trial rights of the accused. The study focuses on those amendments that play a role in the prosecution of alleged sexual offences against children, and shows that although the recognition of victims' rights is important, it should not be done at the expense of a fair trial. Dangers inherent to the proposed amendments are therefore highlighted. The rights of the accused are used to test the desirability or not of the proposed amendments. Foreign authority is used to support the argument made in the thesis.<br>AFRIKAANSE OPSOMMING: In 2002 het die Suid-Afrikaanse Regskommissie 'n verslag gepubliseer waann veranderings aan die huidige strafprosesreg- en bewysregreëls voorgestel word. 'n Aantal van hierdie voorgestelde wysigings is intussen opgeneem in 'n Wetsontwerp wat in Augustus 2003 voor die Parlement gedien het. Die voorgestelde wysigings reflekteer tot 'n groot mate waardes wat die "Victims' rights" beweging onderlê. Die doel van hierdie tesis is om die moontlike invloed van hierdie wysigings op die grondwetlik verskanste billike verhoor regte van die beskuldigde te ondersoek. Die ondersoek fokus op daardie veranderinge wat 'n rol speel in die vervolging van beweerde geslagsmisdade teen kinders. Daar word aangetoon dat alhoewel die erkenning van regte vir slagoffers belangrik is, dit nie ten koste van 'n regverdige verhoor gedoen kan word nie. Gevare verbonde aan die voorgestelde wysigings word dus uitgewys. Die regte van die beskuldigde word deurgaans gebruik om die wenslikheid al dan nie van die voorgestelde wysigings aan te toon. Buitelandse gesag word aangewend om die betoog te ondersteun.

Thesis (M Social Work)--Stellenbosch University, 2002.<br>ENGLISH ABSTRACT: This study is concerned with children and youths in conflict with the law, who are additionally at risk of becoming or being in need of care. The study eventuated from concern for neglected children and youths from poor, disadvantaged and violent communities in the Western Cape Province, who inevitably lapsed into crime. Child and youth care, including juvenile justice, in South Africa is presently in a process of transformation, managed by the inter-ministerial committee on young people at risk. As an outcome of the transformation of the juvenile justice system, assessment centres were established at juvenile courts. Probation officers were appointed in terms of the Probation Services Act (Act 116 of 1991) to assess arrested children and youths before their first court appearance in view of a suitable awaiting trial placement and possible diversion of the criminal case. The researcher investigated how arrested children and youths, being in need of care, are managed within the criminal justice system. The research study showed that in spite of the implementation of policies and legislation to protect children and youths from detention in prison, the number of children and youths in prisons awaiting trial have steadily increased. A continuous shortage of vacancies in awaiting trial places of safety exists. It has further been established that professionals such as magistrates, prosecutors and probation officers recognize the needs of arrested children and youths who are additionally at risk of being or becoming in need of care. Factors such as the existing lack of vacancies in awaiting trial places of safety however result in children and youths not being protected in terms of care in all instances. The research study also indicated that arrested children and youths who are current subjects of the Child Care Act (Act 74 of 1983) as amended are often not effectively managed within the criminal justice system. A lack of sufficient knowledge of the said Child Care Act by especially prosecutors appears to be a contributing factor. A comprehensive criminal justice system for children and youths in South Africa is being envisaged, as contained in the draft Bill (Bill B), which will enable individualized but holistic services in respect of children and youths in conflict with the law. The role and tasks of probation officers carrying out assessments have as such become a key element in the management of arrested children and youths, as contained in the draft Bill (Bill B). Probation officers therefore playa significant role in advising the court regarding the appropriate management of arrested children and youths who are at risk of becoming or being in need of care.<br>AFRIKAANSE OPSOMMING: Hierdie studie het betrekking op kinders en jeudiges in botsing met die gereg, wat bykomend in gevaar is om sorgbehoewend te raak of sorgbehoewend is. Die studie het voortgevloei uit besorgdheid oor verwaarloosde kinders en jeugdiges van arm, agtergeblewe en geweldadige gemeenskappe in die Wes-Kaap Provinsie, wie noodwendig in misdaad verval het. Kinder- en jeugsorg, insluitend jeugreg in Suid-Afrika is tans in 'n proses van transformasie, wat deur die inter-ministeriële komitee vir jong persone in gevaar, bestuur word. As 'n uitkoms van die transformasie van die jeugregsisteem, is asseseringsentrums by jeughowe tot stand gebring. Proefbeamptes is in terme van die Wet op Proefdienste (Wet 116 van 1991) aangestel om gearresteerde kinders en jeugdiges te asseseer voor hulle eerste hofverskyning in die lig van 'n geskikte aanhouding terwyl verhoofafwagtend en moontlike afwending van die kriminele saak. Die navorser het ondersoek ingestel na die wyse waarop gearresteerde kinders en jeugdiges wat sorgbehoewend is, binne die kriminele jeugregstelsel hanteer word. Die navorsingstudie het getoon dat ten spyte van die implementering van beleid en wetgewing om kinders en jeugdiges van aanhouding in gevangenisse te beskerm, die hoeveelheid kinders en jeugdiges verhoorafwagtend in gevangenisse voortdurend toegeneem het. 'n Deurlopende tekort aan vakatures in plekke van veiligheid kom voor. Dit is verder vasgestel dat die behoeftes van gearresteerde kinders en jeugdiges wat bykomend in gevaar is om sorgbehoewend te raak of sorgbehoewend is, deur professionele persone soos landdroste, aanklaers en proefbeamptes erken word. Faktore soos die bestaande tekort aan vakatures in plekke van veiligheid veroorsaak egter dat kinders en jeugdiges nie ten alle tye beskerm word nie. Die navorsingstudie het ook aangedui dat gearresteerde kinders en jeugdiges wat steeds onderhewig is aan die Wet op Kindersorg (Wet 74 van 1983) soos gewysig dikwels nie doeltreffend binne die kriminele jeugregsisteem hanteer word nie. Gebrek aan voldoende kennis van die genoemde Wet op Kindersog deur veral aanklaers, blyk 'n bydraende faktor te wees. 'n Omvattende kriminele jeugregsisteem vir kinders en jeugdiges in Suid-Afrika word beoog, soos vervat in die konsep Wetsontwerp (Wetsontwerp B), wat die geleentheid vir individuele maar holistiese dienste ten opsigte van kinders en jeugdiges in botsing met die gereg sal bied. Die rol en take van proefbeamptes wat assesserings uitvoer het as sulks 'n sleutel element geword in die hantering van gearresteerde kinders en jeugdiges, soos vervat in die konsep Wetsontwerp (Wetsontwerp B). Proefbeamptes speel gevolglik 'n belangwekkende rol ten einde die hof te adviseer oor die gepaste hantering van gearresteerde kinders en jeudiges wat in gevaar is om sorgbehoewend te raak of sorgbehoewend is.

Thesis (MPhil)--Stellenbosch University, 2003.<br>ENGLISH ABSTRACT: Violence against women is a serious offence. Emotional and physical abuse can happen to our daughters, sisters and wives. Rape is a form of violence against women. It violates a woman's privacy, dignity and it makes her feel as if she has lost control. The criminal justice system is there to protect the citizens of a country and this protection should extend to women when they have been violated. The criminal justice system has different structures, for example the courts, medical services and police services. The staff of the criminal justice process do not have an inherent duty to care about rape survivors but they can be trained to treat survivors with consideration and sympathy to counteract the effects of the rape and secondary victimization experienced by rape survivors. It is important that there are guidelines for the staff of the criminal justice system to assist them in rape cases. This thesis explores whether women experience secondary victimisation during court proceedings. To assess whether it occurs, court transcripts were analysed with a focus placed on the background of the court case and the verdicts of the judges. Findings indicate that secondary victimisation do occur during court cases. Rape survivors feel as if they are on trial and not the rapist. Survivors furthermore believe that they will have to live with the label that they had been raped and humiliated. The thesis recommends that officials of the criminal justice process should receive extensive training, and looks at the Sexual Offences Court in Wynberg as an example of an improved system for rape survivors. It is recommended that the procedures of the Sexual Offences Court should be evaluated on a regular basis to address secondary victimisation problems that may persist. Communication is very important during the rape trial. The rape survivor has to be informed about her case and about the location of the rapist at all times.<br>AFRIKAANSE OPSOMMING: Geweld teen vroue is 'n ernstige oortreding wat plaasvind in ons samelewing. Emosionele en fisiese geweld kan gebeur met ons dogters, vroue en susters. Hierdie vorm van geweld laat vroue voel asof hulle beheer verloor oor hulle lewens en dit het ook 'n impak op hul self respek en selfbeeld. Die Kriminele Sisteem van Suid Afrika is daar om die belange van sy inwoners te beskerm. Dit het verskillende afdelings byvoorbeeld, die mediese dienste, die polisie en die hof verrigtinge. Die lede van die Kriminele Sisteem werk met verskillende individue wat voel dat die hof die uitweg sal wees wat geregtigheid sal laat geskied. Die lede van die Kriminele Sisteem het nie 'n persoonlike verantwoordelikheid teenoor die verkragtings oorlewendes nie, maar hulle moet sensitiwiteit en empatie betoon teenoor die dames wat verkrag was. Die gedrag van die personeel speel 'n groot rol in terme van hoe die vrou wat verkrag was die aangeleentheid verwerk. Die fokus van die studie is om te kyk of vroue wel sekondêre viktimisering ervaar wanneer hulle besluit om voort te gaan met die hofsake. Hof transkripsies was gebruik om te kyk of vroue wel benadeel word. Daar was gekyk na die uitsprake van die regters sowel as die agtergrond van die hofsaak. Daar was bevind dat sekondêre viktimisering wel plaasvind gedurende die hof verrigtinge. Vroue voel asof hulle verantwoordelik is vir die verkragting wat met hulle gebeur het. Die verkragter word nie gesien as die persoon wat oortree het nie. Hierdie gevoelens van self blamering vorm deel van sekondêre viktimisering wat veroorsaak dat vroue sommige kere voel om nie verder te gaan met die hof saak nie. Die verskillende lede van die Kriminele Sisteem moet gedurig opleiding verkry wat hulle in staat sal stel om die gevoelens van die slagoffers in ag te neem. Die howe wat spesiaal opgerig is om verkragting sake te verhoor moet geevalueer word sodat dit 'n sukses kan wees. Kommunikasie moet bevorder word tussen die verskillende departemente en nie -regerings organisasies wat 'n rol speel gedurende die hof sake.

In the last decade the use of closed-circuit television or similar electronic devices (CCTV) has started to play a significant role in courtrooms, both as a silent witness and as a device through which to receive testimony. The benefits of optimising the use of CCTV for receiving testimony are numerous. This paper focusses on two, namely easier access to justice through criminal courts, and bridging the gap between the protective measures created by legislation with regard to vulnerable witnesses and the effective implementation of said measures. The requirements for using CCTV to receive testimony, if interpreted in a reasonable way, does not limit the type of device or facility to be used. It merely stipulates that the facilities at a remote point be overseen by a designated official, and that the device to be used must allow all parties, both at the court point and at the remote point, to hear and see the other parties, and to be able to follow the proceedings. In recent years technology has advanced to such an extent that audio-visual capable devices are readily available. It is proposed that if the above interpretation is followed, the facilities through which testimony can be given by means of CCTV need not be stationary, it can travel to where it is needed thereby making courts more accessible, and alleviating trauma with regards to vulnerable witnesses who can testify at a designated buildings and no longer needs to go to court, a place designed to be intimidating.<br>Mini Dissertation (LLM)--University of Pretoria, 2019.<br>Procedural Law<br>LLM<br>Unrestricted

The work deals with shortcomings in the South African Criminal Law in respect of how to addresses cyberbullying crime. The report focus on how American Legislation deals with cyberbullying as compared to South African Legal framework. The work critically analyses the the South African legislation dealing with cyberbulying as a criminal offence.<br>Dissertation (LLM)--Universtity of Pretoria, 2019.<br>None<br>Procedural Law<br>LLM<br>Unrestricted

The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.

The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.

Thesis (MScEng (Civil Engineering))--University of Stellenbosch, 2011.<br>ENGLISH ABSTRACT: The hypothesis postulated in this research, namely that the effectiveness of natural and constructed buffer dune systems can be assessed by a set of indicators that defines the integrity of the dune system and triggers informed management decisions, was evaluated and proved to be essentially true. Two key objectives, namely (1) the identification of key indicators that define the buffer dune integrity; and (2) the development of a scientifically defendable and practical checklist-based method of gathering qualitative information on the identified key indicators so as to guide decision-making at municipal level formed the core of the study. The six dune integrity indicators that collectively define the risk profile of a particular site along the Southern Cape coastline are (1) the degree of protection from prevailing wave energy, (2) the characteristics of the dominant winds and sand supply during the dry season, (3) the relative height of the foredune, (4) the degree of pressure on the buffer dune due to humans, (5) the vulnerability of the type of coastline to erosion, and (6) the coastline stability considering the prevailing coastal processes. The first two indicators relate to the natural (permanent) characteristics of the site and can be defined by experts and presented in the form of a risk and vulnerability atlas layer for direct use by non-experts. The third and fourth indicators relate directly to the implementation of proactive assessment and appropriate management actions to ensure a high level of buffer dune integrity. The last two indicators allow for management intervention to reduce the vulnerability but may entail costly engineering solutions and require expert input. A conceptual risk profile assessment procedure and a decision support guideline incorporating these indicators were developed and evaluated for relevance and practicality through a series of workshops with municipal officials along the south coast of South Africa. It was seen that although some initial basic training may be required, carrying out rapid assessments of the environmental status of key components of an identified human–nature system, such as a buffer dune, is practical and achievable by non-experts.<br>AFRIKAANSE OPSOMMING: Die hipotese wat in hierdie navorsing gepostuleer is, naamlik dat die doeltreffendheid van natuurlike en geboude bufferduinstelsels geassesseer kan word deur ’n stel aanwysers wat die integriteit van die duinstelsel bepaal en ingeligte bestuursbesluite tot gevolg het, is getoets en bewys hoofsaaklik waar te wees. Twee sleuteldoelwitte, naamlik (1) die identifisering van sleutelaanwysers wat die bufferduinintegriteit bepaal; en (2) die ontwikkeling van ’n praktiese kontrolelys-gebaseerde metode wat wetenskaplik verdedigbaar is om kwalitatiewe inligting oor die geïdentifiseerde sleutelaanwysers in te samel ten einde besluitneming op munisipale vlak te bevorder, vorm die kern van die studie. Die ses duin-integriteitsaanwysers wat gesamentlik die risikoprofiel van ’n bepaalde terrein langs die kuslyn bepaal, is (1) die graad van beskerming teen die heersende golfenergie, (2) die kenmerke van die dominante winde en sandbron gedurende die droë seisoen, (3) die relatiewe hoogte van die voorduin, (4) die graad van druk op die bufferduin as gevolg van mense, (5) die eroderingskwesbaarheid van die soort kuslyn, en (6) die kuslynstabiliteit met inagname van die kusprosesse. Die eerste twee aanwysers het betrekking op die natuurlike (permanente) eienskappe van die terrein en kan deur kundiges bepaal word en in die vorm van ’n kaart in ’n risiko-enkwesbaarheidsatlas aangebied word vir direkte gebruik deur niedeskundiges. Aanwysers 3 en 4 hou direk verband met die implementering van tydige en deurlopende proaktiewe assessering en gepaste bestuursaksies om ’n hoë vlak van bufferduinintegriteit te verseker. Aanwysers 5 en 6 bevorder bestuursaksies om kwesbaarheid te verminder, maar kan moontlik duur ingenieursoplossings inhou en kundige insette benodig. ’n Konseptuele risikoprofielassesseringsprosedure en ’n besluitondersteuningsriglyn wat die aanwysers insluit, is ontwikkel en geëvalueer vir toepaslikheid en uitvoerbaarheid deur ’n reeks werkswinkels met munisipale amptenare aan die suidkus van Suid-Afrika. Hoewel aanvanklike basiese opleiding nodig kan wees, bly dit dat vinnige assessering van die omgewingstatus van sleutelkomponente van ’n geïdentifiseerde mens–natuurstelsel, soos ‘n bufferduin, prakties en haalbaar deur niedeskundiges is.

The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.

In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.

This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.

Bibliography: pages 136-145.<br>The aim of this report is to develop a procedure for the environmental evaluation of roads in South Africa, because in the past the environmental evaluation of road projects have been on an ad hoc basis, often using different formats. The procedure is therefore to be replicable from scheme to scheme, procedure, Management and is to be incorporated into the existing road development while drawing on the principles of Integrated Environmental The first part of the report is a study of the environmental evaluation procedures adopted in the United Kingdom, United States of America and Ontario (Canada). The environmental evaluation of roads in these countries are compared under the following headings: contextual features of the environmental evaluation procedures; the planning, location and design stages of the environmental evaluation procedures, and the environmental evaluation documentation. In this comparative study, the common and unique steps and elements are identified in order to generate an 'Ideal'. The second part of the report is a study on the environmental evaluation of roads in South Africa. The administrative structure, legislation, policy and planning procedures for roads in South Africa, and Integrated Environmental Management (IEM) are discussed. Although IEM is currently been developed and road authorities are committed to IEM, the procedure still needs to be incorporated into the existing road development procedure. The third part of the report develops a procedure for the environmental evaluation of roads in South Africa. The procedure developed incorporates common and unique steps and elements generated in the 'Ideal' into the existing road development procedure. The Environmental Conservation Act and Integrated Environmental Management are also taken into account in developing the procedure. Finally, as there is at present no formal documented procedure for the environmental evaluation of roads in South Africa, it is recommended that the procedure be considered by road and environmental authorities with a view to implementing it.

The dawn of democracy failed to bring legitimacy to the Police Service. Public and political debate seriously lambasted the Police Service for criminal offences committed on and off duty by police officials which pertained to the infringement on the individual rights regarding personal safety and the right to own property. The outcry against criminal offences by police officials forced the Police Service to deal decisively with criminality in the Police Service by means of fitness boards. While the government and public approved of the attempts to rid the Police Service of criminality it was met with union resistance in the Eastern Cape and defeat in the Labour Court. Different legislation, internal arrangements and case law were observed in this study. The purpose was to determine the strength or weaknesses if any of the applicable legislation and internal arrangements which contributed to a finding against the Police Service in the Labour Court.

In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.

Text in Afrikaans<br>Weens die gebrek aan wetenskaplike bewerking van die legaliteitsbeginsel in die strafprosesreg, moet leiding gesoek word by leerstukke en beginsels van die staatsreg wat gemoeid is met die onderdaan-staatsgesagproblematiek (rule of law, die regstaat, due process of law en menseregte) asook by die legaliteitsbeginsel in die strafreg. 'n Leerstelling wat gemeenskaplik aan al hierdie leerstukke en beginsels is, is dat willekeurige owerheidsgesagsuitoefening teenoor die regsonderdaan in bedwang gehou moet word deur reelgebondenheid. Daar moet veral gelet word of daar blyke is van ontwikkeling vanaf die formele aspek (die beperkte eis dat daar 'n regsbasis vir owerheidsoptrede moet wees) na 'n materiele inhoud (of die betrokke leerstuk ingestel is op waardes wat aanduiding kan gee van 'n besondere geregtigheidsopvatting). Die legaliteitsbeginsel in sy basiese verskyningsvorm vereis dat owerheidsoptrede moet voldoen aan voorafbepaalde en vasstaande regsvoorskrifte; met wetmatigheid as hoofkomponent van hierdie vorm van legaliteit, is die onderskeidende kenmerk daarvan legalisme. In sy omvattende gedaante sluit die legaliteitsbeginsel die meeste van die attribute van die engere verskyningsvorm in, maar stel verdere vereistes: dit verg dat owerheidsoptrede moet voldoen aan voorafbepaalde, vasstaande en regverdige voorskrifte wat behoorlik verorden is en volgens 'n vaste prosedure uitgeoefen word - behalwe in daardie gevalle waar owerheidsoptrede, in die afwesigheid van uitvoerige regsreeling deur toepaslike norme, gestruktureerde en gekontroleerde diskresieuitoefening noodsaak. Daar word ter oorweging gegee dat die strafprosessuele regte van die individu die materiele inhoud van die legaliteitsbeginsel in die strafprosesreg vorm. Die meeste van hierdie regte is vervat in die Grondwet van die Republiek van Suid-Afrika 200 van 1993. Weens die eise van geregtigheid in die individuele geval, word diskresie-uitoefening deur owerheidsagenture soos die polisie en aanklaer asook regterlike beamptes deur die legaliteitsbeginsel geduld, maar diskresie-aanwending moet gestroop word tot die noodsaaklike, aan beperkings onderhewig gestel word en ook gekontroleer en gestruktureer word. Met die koms van die nuwe grondwetlike bedeling en die instelling van 'n Konstitusionele Hof kan stellig verwag word dat die strafprosessuele regte verder verfyn sal word en dat die toekoms nuwe insigte op die gebied van strafprosesregtelike legaliteit sal bring.<br>Due to the lack of scientific treatment of the principle of legality in criminal procedure, guidance must be sought from constitutional law doctrines that address the problematic inter-relation individual vis-a-vis state authority (rule of law, the Rechtsstaat, due process of law and human rights) and from the principle of legality in criminal law. A tenet shared by these doctrines, is that the arbitrary exercise of executive power over the individual should be restrained through adherence to rules. Whether development from the formal aspect (that a legal basis for executive action is required) to a substantive content (whether the doctrine concerned is committed to values reflecting a specific concept of justice) occurs, is examined. Basic legality requires that state action comply with rules that are certain and previously formulated; with adherence to rules ("wetmatigheid") as its main component, its distinguishing feature is legalism. In its comprehensive form, the principle of legality includes most of the attributes of the basic form, but makes further demands: executive action must conform to rules that are certain, already formulated and just, properly ordained and executed in accordance with a fixed procedure - except in those cases where executive action, in the absence of detailed regulation by legal norms, necessitates the structured and controlled exercise of discretion. It is submitted that the procedural rights of the citizen constitute the material content of the principle of legality in criminal procedure. Most of these rights have been included in the Constitution of the Republic of South Africa Act 200 of 1993. Because of the demands of justice in the individual instance, the exercise of discretion by the agencies of the state, the police and prosecution, as well as judicial officers, is tolerated by the principle of legality: provided that this exercise of discretion is limited to what is absolutely necessary, and is restrained, controlled and structured. With the advent of the new constitutional dispensation and the institution of the Constitutional Court, it may be expected that procedural rights will be further emended and that some new perceptions in the field of legality in criminal procedure are imminent.<br>Criminal & Procedural Law<br>LL. D.

Submitted in partial fulfillment of the requirements for the degree of Master of Laws by Coursework and Research Report at the University of the Witwatersrand, Johannesburg<br>With the upsurge of corporate activity in the world many countries have incorporated ways in which to regulate corporate crimes. That has been achieved through ‘corporate criminal liability’. Companies are juristic persons, therefore criminal liability cannot be attached to a company through its direct conduct. Unlike natural persons, companies can only be found criminally liable through the conduct of their agents; through the concept of vicarious liability. With all jurisdictions in the world governing corporate crimes through vicarious liability, there are different approaches that have been incorporated in regulating corporate criminal liability. The United States of America uses a system known as the principle of aggregation while the UK uses the doctrine of identification. With South Africa using the basics of vicarious liability and with potential problems being rooted in the constitutionality of the legislation governing corporate criminal liability, it is possible that section 332 of the Criminal Procedure Act is not the most effective approach to regulating corporate criminal liability<br>MT 2019

Text in Afrikaans<br>Beskermi ng van fundamente le mense- en konst itus i one le regte het moderne regstelsels tot herbesinning oor tradisionele bewysregreels rakende die toelaatbaarheid van getuienis aangaande verklarings van 'n beskuldigde en die privilegie teen selfinkriminasie gedwing. Om die omvang van die stroming op die kwessie van getuienis oor aanwysings wat op 'n onvrywillige of onbehoorlike wyse bekom is vas te stel, word 'n analise gedoen van artikel 218 van die Strafproseswet, wat fokus op die toelaatbaarheid van getuienis oor aanwysings en getuienis wat as gevolg van aanwysings verkry is. Die Appelhofbeslissing in S v Sheehama oor die toelaatbaarheid van getuienis omtrent gedwonge aanwysings, word gesien as die beliggaming van 'n nuwe filosofie rakende die beskuldigde se privilegie teen selfinkriminasie. Die gevolgtrekking word gemaak dat die bepalings van artikel 218(2) onbillik is, 'n skending van die beskuldigde se privilegie teen selfinkriminasie tot gevolg het en herroep moet word. Voorstelle vir regshervorming word in hierdie verband gemaak.<br>The protection of fundamenta 1 human and con st itut i ona 1 rights has caused modern legal systems to re-evaluate traditional rules of evidence regarding the admissibility of evidence concerning statements of an accused and the privilege against self-incrimination. To determine the extent of such a re-evaluation on evidence of paintings-out which are involuntarily or improperly obtained, an analysis of section 218 of the Criminal Procedure Act is undertaken. It focuses on the admissibility of evidence of paintings-out and evidence obtained in consequence of pointingsout. The decision of the Appellate Division in S v Sheehama on the admissibility of evidence of pointing-outs, obtained by means of compulsion, is seen as an embodiment of a new philosophy towards an accused's privilege against nondiscrimination. It is concluded that the provisions of section 218(2) are unfair, infringe on an accused's privilege against self-incrimination and should be repealed. Proposals for law reform are made in this regard.<br>Criminology and Security Science<br>LL.M.

Before 1994 criminal procedure was subject to the sovereignty of Parliament and the untrammelled law enforcement powers of the executive which resulted in the authoritarian and oppressive criminal justice system of the apartheid era. The Constitution, Act 108 of 1996 has since created a democratic state based on the values of the supremacy of the Constitution and the rule of law. The basic principles of criminal procedure are now constitutionalised in the Bill of Rights. The Bill of Rights protects the fundamental rights of individuals when they come into contact with organs of the state which includes the police. The Criminal Procedure Act 51 of 1977 authorises the police to search for and to seize articles, and has long provided the only legal basis for obtaining warrants to search for and to seize articles and for performing such actions without a warrant in certain circumstances. Generally the standard for these measures and actions taken under their purview has been one of reasonableness. Since the birth of the Constitution there has been additional constraints on search and seizure powers. Not only are there now constitutionalised standards by which such legal powers are to be measured, but there is also the possibility of excluding evidence obtained in course of a violation of a constitutional right. The provisions of the Criminal Procedure Act are now qualified by the Constitution. Where feasible a system of prior judicial authorisation in the form of a valid search warrant obtained on sworn information establishing reasonable grounds is a precondition for a valid search or seizure. Search and seizure without a warrant is permitted only in exceptional circumstances such as an immediate threat to person or property. By prohibiting unreasonable searches and seizures the Constitution places important limits on police efforts to detect and investigate crime. The Constitution appreciates the need for legitimate law enforcement activity.<br>Criminal and Procedural Law<br>LL.M.

Juvenile Offending is widely believed to be on the increase judging by the growing number of convictions of young offenders in Gauteng Province. Policy and legislation has been renewed to uphold the rights of the child and to provide more humane intervention plans for children in conflict with the law. Appropriate sentencing of young people in conflict with the law remains a significant challenge in the South African Criminal Justice System. The Probation Services Act (Act 116 of 1991) provides for the appointment of probation officers who are responsible for screening, assessing and referring persons awaiting trial. After young offenders are convicted of a crime, a probation officer is required to conduct a pre-sentence investigation and write a pre-sentence report to assist the Magistrates and Judges in making appropriate sentencing decisions. This study aims to assess the usefulness of probation officers / pre-sentence reports in sentencing decisions concerning young offenders in the Criminal Justice System. Probation services are overloaded and understaffed and many social workers have not had adequate training in working in this field. These factors may compromise the quality of the pre-sentence investigation and the consideration of sentencing options. The aim of this study was to assess the usefulness of probation officers’ reports in sentencing young offenders in the Criminal Justice System. A representative sample of fifteen magistrates from Johannesburg Courts and the surrounding areas including a judge from the High Court was used for this study. The findings indicated that all the respondents were involved and experienced in sentencing young offenders. ii From the findings of the study, it can be concluded that most of the respondents found the probation officer’s reports useful in terms of the purpose of the pre-sentence investigations, understanding the young offender in his / her family, community and socio-economic and cultural context; the criminal history and profile of the young offender; the probation officer’s evaluation and assessment; and the consideration of appropriate sentencing options. With regard to suggestions to improve the probation officers’ reports the following was suggested by some of the respondents: - - Reports should be compiled and presented to court in time. - A workshop involving probation officers, prosecutors, magistrates and other service providers for young offenders needs to be done. - Probation officers should communicate with the prosecutors so that they get knowledge of the court proceedings regarding the trial. - Probation officers should look at the docket that carries the information regarding the young offender. - If a young offender is detained in a detention centre, probation officers should visit them frequently in order to evaluate the effectiveness of the programs they are exposed to, for sentencing purposes. The research design was qualitative in nature and an interview schedule was completed for the purpose of data collection. iii The results of this study indicated that the probation officer’s report is useful. The majority of the respondents stated that the probation officer’s report met their expectations. However, not all of them had suggestions regarding guidelines to improve pre-sentence reports, as the existing one covers all the necessary aspects.<br>Prof. L. Patel

Due to the party-orientation and professional nature of the adversary mode of criminal procedure, the principles of a fair trial are best observed where the accused is represented by a lawyer. Given the advantages to be gained from legal representation, the principle of equal justice requires that all accused should have access to legal assistance and thus that legal aid should be provided for indigent accused. The South African legal aid scheme cannot yet provide assistance to all indigent accused because of the large number of these accused, the shortage of manpower and the lack of funds. There are, however, few legislative provisions to safeguard the rights of the vast majority of accused, arraigned in the lower courts, who remain undefended. The Supreme Court, in order to ensure that these accused are fairly tried, has imposed the following types of duties on judicial officers: (a) a duty to facilitate the accused's participation in the proceedings by advising him of his rights and duties and assisting him in their exercise; (b) a duty to control the prosecutor in the exercise of his powers; and (c) a duty to conduct an enquiry before arriving at administrative-type decisions. These duties are, however, inadequate to achieve the Court's, objective because, firstly, not all, rights are made accessible to the accused, and secondly, the duties are inadequate to ensure that the accused's guilt is reliably established. The failure of the legislature and the Supreme Court to incorporate the principle of equal justice into the legal process, has resulted in court proceedings that are characterized by unjust practices and outcomes. To ensure the more equitable prosecution of undefended accused it is suggested that an activist judicial officer should be responsible for the enforcement of all the principles of a fair trial (which would be concretized in clear legal rules) in an impartial manner, with his decisionmaking routinely supervised by the Supreme Court.<br>Thesis (LL.D.)-University of Natal, Durban, 1986.

Text in Afrikaans<br>Artikel 217 is van toepassing op Jn bekentenis, synde Jn ondubbelsinnige erkenning van skuld, wat indien dit in Jn hof gemaak sou word, sou neerkom op Jn pleit van skuldig. Om toelaatbaar te wees, moes die verklaarder die bekentenis vrywillig en ongedwonge, by sy volle positiewe sender onbehoorlike beinvloeding afgele het aan Jn landdros of vrederegter. Waar die bekentenis in Jn dokument vervat is, is dit, mits daar aan die toelaatbaarheidsvereistes voldoen is, toelaatbaar teen die verklaarder daarvan. Artikel 209 vind toepassing mits die bekentenis Jn volle bekentenis is en die vereistes van artikel 217 nagekom is. Volgens die beslissing in S V SHEEHAMA 1991 2 SA 860(A) is Jn aanwysing Jn erkenning. As sulks moet dit voldoen aan die vereistes van artikel 219A en moes derhalwe vrywillig en ongedwonge gemaak wees. Jn Gedwonge aanwysing is dus ontoelaatbaar, tensy nuwe feite ontdek word as gevolg daarvan.<br>Section 217 is applicable to a confession, being an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of law. To be admissible, the declarant must have made the confession to a magistrate or justice freely and voluntarily in his sound and sober senses without having been unduly influenced thereto. Section 209 is applicable provided that the confession is a full confession and the requirements of section 217 are complied with. According to the judgment in S V SHEEHAMA 1991 2 SA 860(A) a pointing out is an admission. As such it must comply with the requirements of section 219A and must therefore be made voluntarily and freely. An involuntary pointing out is thus inadmissible, except if new facts are discovered because of it.<br>Criminal and Procedural Law<br>LL.M.

The State as the representative of the victims of crime is expected to protect those vulnarable group of people with due regard to the rights of the perpetrators’s of crime. It is imperative that the law of general application which is aimed at protecting victims of crime, be sufficiently effective to protect the victims. The Criminal Procedure Act 51 of 1977 is aimed at assisting the police to conduct pre-trial criminal procedure in order to bring perpetrators of crime to book. Sections 36A, 36B, 36C and 37 (both previous and as amended) of the Criminal Procedure Act including chapter 5A of the South African Police Act, 1995 are explored in this dissertation. This dissertation examines the areas in the Criminal Procedure Act that make it problematic for the police to conduct efficient and effective crime detection through the ascertainment of bodily features of the suspected or accused person. The law in three foreign jurisdictions relating to this topic are investigated and compared in order to make recommendations and suggest possible solutions.<br>Criminal & Procedural Law<br>LL.M.

The research attempts to establish how an identification parade should be conducted, for evidence derived from it to be admissible in court. To conduct effective investigation, it is important for investigators to be familiar with the concept “identification parade”, its purpose, the procedures to conduct it and its values. To achieve the goals and objectives of the practice of an identification parade, investigators must know how to conduct it, what the value of its evidence is, and how to use it as a technique to identify suspects. The direction, by implication, and clarification of the crime situation, is hardly possible without the determination of the identity of the perpetrator or suspect of a criminal act. The recognition of the identification parade as a form of evidence gathered is of the utmost importance.<br>Criminology<br>Thesis (M.Tech. (Forensic Investigation))

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees.<br>Criminal & Procedural Law<br>LLM

Quantified decision-making refers to the scaling of factors such as crime seriousness, risk assessment, violation severity, and punitive responses or intensity of surveillance. As such, it is largely based on the justice principle, according to which the punitive response should be commensurate with the crime committed. This study consequently looks at the applicability of a retributive stance towards probation, and suggests a quantified, or structured, approach to decision-making in probation with special reference to the South African situation. Referring to historical and ideological precedents, it is maintained that the current crisis in corrections - referring to the congestion of prison facilities and the negative spin-offs related to it - can, to a large extent, be ascribed to an over reliance on imprisonment as a sentencing option. It is argued that imprisonment can be seen as a failure in terms of both its basic motives, and more importantly, with regard to its unintended consequences, necessitating a search for viable sentencing alternatives. With regard to probation, and Intensive Supervision Probation (ISP) in particular, this study recognizes its limitations, but maintains that probation still holds the greatest potential as a workable alternative to incarceration. In view of South African corrections, that is plagued by prison overcrowding, on the one hand, and certain structural shortcomings, on the other, a structured probation system is proposed that will evade the weaknesses of subjective decisionmaking, which often act to intensify the crisis. It is proposed that quantified decision-making tools be developed that will replace both sentencing and revocation decisions. It is further suggested that an effective risk prediction instrument be developed to guide the probation process.<br>Penology<br>D. Litt. et Phil.

Private defence is the civilized remnant of the ancient system of private vengeance as redress for wrong done. The Romans, in permitting self-help formulated the principle moderatio inculpatae (moderation in self-defence) which the European jurists later relied upon to develop a coherent doctrine of private defence. Certain types of intentional killings were no longer regarded as unlawful and therefore are not punished as murder. South African recognizes that killing is justifiable and therefore not murder. Despite the sound rationale underlying the defence, namely the upholding of justice theory where people acting in private defence perform acts where they assist in upholding the legal order, and despite the fact that the defence is established in both criminal law legal theory and practice, there are threshold problems with this rationale which has been subject to much academic criticism. Such criticism must be seen in the context of the wider debate surrounding the circumstances in which battered women kill their abusers - normally in circumstances where the threat is not imminent and therefore the need to uphold justice is not necessary. The purpose of this enquiry is to examine the development and functioning of the defence and more particularly to do so in light of a comparison with the means currently utilized to criminalize conduct falling outside the bounds of self-defence: one of the parent systems of South African law, namely English law and the United States, where battered woman syndrome originated and a profound influence on the way in which the elements of the defence are interpreted in that jurisdiction. For instance, in American law subjective tests for self-defence have been developed such as the particularizing standard. This standard asks whether a reasonable person with the accused’s particular non-universal characteristics would have both perceived the situation as the accused perceived it and would have reacted to that perception by committing the accused’s self-defensive act. If the answer is yes, then the act is considered reasonable. It assumes that individuals freely choose how to perceive and respond to a threatening situation but also acknowledge that certain kinds of nonuniversal characteristics (such as battered woman syndrome) exercise such a powerful causal force on individuals perceptions and actions that it would violate the voluntary act requirement when holding that individual who possess such a characteristic to a standard of conduct that does not take that characteristic into account. The study concludes with an assessment of the form the defence ought to take. In South African law the defence consists of the conditions relating to an attack which includes: an attack, and protected interest and the attack must be unlawful. In respect of the conditions relating to the defence, the defence must be reasonably necessary to avert the attack and the defence must be directed against the attacker. Aspects of these elements have proved to be controversial. In particular, the condition of reasonably necessary to avert the attack has been called into question. Furthermore the requirement of imminence has been rendered especially controversial especially when viewed from the battered woman’s perspective where battered woman syndrome plays a role i.e. the woman’s internal makeup having an influence on the way she views the situation as opposed to an objective test is used to establish if the threat was imminent. While the English and American law elements of the duty to retreat, proportionality and reasonableness approximate the equivalent condition of reasonably necessary to avert the attack, the focal point of this defence in these jurisdictions has similarly been the imminence requirement and the test utilized for self-defence i.e. objective or subjective standard. Prior to evaluating the utility of these elements, the various rationales posited as a justification for the defence will be examined. It is submitted that while various rationales have been posited to form the basis of selfdefence, the autonomy theory (narrowly circumscribed) should be followed in South African law and that the traditional elements for self-defence should remain in force. Regarding the requirement that the attack be reasonably necessary, it is submitted that the traditional mechanism for distinguishing justified from unjustified self-defensive acts should remain an objective test. This is so because by taking account of the knowledge the defender has of her attacker the legal requirements of private defence will eventually be equated with those required for putative self-defence. If putative selfdefence goes to the issue of culpability, which is seen as a particular mental attitude or state of mind - South African law will be evincing a move toward a normative concept of fault. Such an approach has not proved unproblematic in South African law. Both early and modern common law as well as modern case law has expounded a coherent statement of the elements of self-defence which include imminence as a core feature. The problem is that traditional imminence rules do not cater adequately for the battered woman’s situation and for this reason theorists have advocated its abolition. The obvious problem with such a recommendation is that something must stand in its stead to distinguish legitimate cases from illegitimate cases of self-defence. In respect of the imminence requirement, the problems created by this standard cannot be solved by replacing imminence with necessity or by claiming priority for necessity or by demanding that imminence means pacifist rather than the libertarian version of necessity. These positions pose the question but do not answer it. Furthermore, if the imminence question cannot be answered by assuming one side of the necessity debate, then it cannot be answered by referring to the distinction between justification and excuse. It is submitted that “instead of viewing objectivity as not being able to account for battered woman’s situation – the opposite conclusion should be reached – that by rethinking certain situational factors as a set of relatively innocuous and perhaps necessary normative propositions then the abused woman’s situation is consistent with some very standard propositions in the law of self-defence. If the abused women is being attacked and the threat is imminent (in the traditional sense), then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this dangerous situation. However, the court would also have to take into consideration the difficulty that the abused woman faced in extricating herself from this position. On the basis of a discussion of the various construals that inform the question of whether proportionality should form a necessary requirement for self-defence, including (i) the liberal aspiration to neutrality, (ii) constitutional norms and (iii) a duty of social solidarity to the state, it is submitted that proportionality should form an integral part of the requirements for self-defence. The test can be set out as follows: not only must the defence be necessary but also the means used by the accused for the purpose of averting the attack must be reasonable in the circumstances. This is in accordance with the autonomy theory. Therefore, would an “ordinary, intelligent and prudent person in the accused’s situation would react to establish if the self-defence claim was justifiable. However, it is submitted that not all the characteristics of the accused should be taken into account. Only those “characteristics which have the most (or direct) bearing on the accused’s situation” should be considered. Despite the rationales underlying self-defence, it has not been entirely clear whether an abused woman is expected to flee. It is submitted that there should be a duty to retreat. In the case of the abused woman, her situation is adequately catered for within the reasonableness neutrality perspective. In respect of the defence of provocation, Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as an excuse for criminal conduct, but only as a factor which might mitigate sentence, if the anger was justified by provocation. South African law with its parent system in Roman-Dutch law might have followed this lead had it not result of the Transkei Penal Code of 1887, it envisaged a type of a partial excuse: even if been for the introduction of the mandatory death penalty for murder in 1917. In 1925 as a killing was intentional, homicide which would otherwise be murder maybe reduced to culpable homicide. The test for provocation was thus an objective one. By 1949 in R v Thibani it was held that provocation was not a defence but a special kind of material from which in association with the rest of the evidence the court should decide whether the accused had acted involuntary or without intent to kill. This introduced a subjective test for provocation. But a number of crucial issues remained unresolved; could intense provocation or emotional stress serve to exclude criminal capacity or voluntary conduct. After the decision in Chretien, the question arose, if severe intoxication could exclude these basic elements of liability then could it not also exclude provocation or emotional stress. At this point, the notion of criminal capacity came to the fore. This notion was unknown in South African common law and was adopted from Continental Legal systems, specifically Germany. The notion took hold with the Rumpff Commission of Inquiry into the Responsibility of Deranged Persons and Related matters, the recommendations of which gave rise to the provision of section 78 (1) of the Criminal Procedure Act. In S v Mahlinza set out that criminal capacity of actor is an essential requirement necessary to establish criminal liability. Criminal capacity consists of cognitive component i.e. ability to distinguish between right and wrong and conative capacity i.e. the ability to act in accordance with the distinction. If either was lacking no liability would ensue. In S v Van Vuuren, the court expressed in unequivocal terms that the accused could not be held liable where failure to comprehend what he is doing is attributable to a combination of factors such as provocation or emotional stress. The very idea of allowing provocation to function as a defence excluding an accused’s criminal liability is inherently controversial. From a moral and ethical perspective people are expected to control themselves, even under provocation or emotional stress. To allow it to function as a complete defence as opposed to mitigating factor means that it gives credence to the belief that retaliation is justified in the eyes of the law and this is the very thing criminal law guards against. Despite the well established nature of the defence of non-pathological incapacity, the law has been thrown into flux by the decision of the Supreme Court of Appeal in S v Eadie which constituted a serious erosion of the notion of criminal capacity, with a concomitant “ripple effect” on other topics within the general principles of criminal law. The question this case has highlighted for South African law of non-pathological incapacity is whether the boundaries of the defence have been inappropriately extended. This is so since the court held not only that there is no distinction between the defence of automatism and nonpathological incapacity, and that it would have to be established that the accused acted involuntarily in order for her defence of lack of capacity to prevail, but furthermore held that the court should assess the accused persons evidence about his state of mind by weighing it against his actions and surrounding circumstances, thereby introducing an objective test. Theorists such as Burchell have considered this move “bold” and “encouraging” for its emphasis on objective norms, and the fact that it brings it into line with both the English and American jurisdictions, where not only is an objective element introduced into the enquiry, but where loss of self-control is not totally excusable since the law assumes that provoked party was not totally incapable of controlling anger. If an accused was unable to control himself, a full excuse would be defensible. The notion of capacity has its approximate equivalent in the English and American law of provocation where the jury must consider the subjective question of whether the accused was actually provoked to lose self-control, the defence requires that a reasonable person in the same circumstances would have lost-self control and acted as the accused did. The South African notion of capacity is examined with reference to the way provocation is treated in these jurisdictions. Should non-pathological incapacity be equated with automatism, the established precedent in provocation and other cases of non-pathological incapacity would have to be revised by implication, and would have serious implications for the principle of legality and restricting the scope of the defence for battered women. Furthermore, it is submitted that a move towards an objective test should not be followed. This is so since such an approach does not extend to encompass the battered woman’s mental and emotional characteristics including recognized psychological disorder symptoms. This results in the court not having any meaningful way to determine whether the battered woman lost self-control and furthermore it will lead to increasing attention being directed at how far the objective test be tailored to fit the capacity of the accused. The problem with the capacity test is that it has created via the Criminal Procedure Act a new element of liability by drawing from both the general physical and the mental liability enquiries. Therefore, by duplicating the voluntary act requirement under mens rea, the courts have asked the same question twice. Once the accused is shown to be acting voluntarily, there will be a measure of goal-directed conduct. Where goal-directed conduct is present, it necessarily implies that here must be a level of capacity present in the case of the defence of non-pathological incapacity. In other words, the question is not whether capacity is present, but to what extent it is present. This point is not acknowledged by our courts: the concept of psychological fault underlying South African law offers no explanation for the fact that culpability is capable of gradation. The effects of battering could be used to support a defence of diminished capacity, which focuses not on mitigating circumstances of the act, but rather on the actor’s inability to form the requisite mens rea for the offence charged. However, the introduction of such a defence could only be achieved by returning to the rules relating to provocation followed in South Africa prior to 1971. According to the specific intent doctrine, policy considerations require that an accused should not be completely acquitted. However, these considerations require that an accused should not be completely acquitted. However, these considerations also require that an accused not be convicted of murder but of culpable homicide. This compromise solution (of culpable homicide) can only be reached by treating provocation as a special defence, one which is not strictly adjudicated in terms of the general principles relating to culpability (mens rea). Furthermore, it is submitted that a subjective test must be applied, since Snyman’s objective-subjective test leads to an illogical confusion between the subjective and objective elements.<br>Thesis (LL.D.)-University of KwaZulu-Natal, Pietermaritzburg, 2009.

In the light of a more punitive stance in Corrections and public discontent with the criminal justice system, a number of studies have been conducted since 1970 testing public punitiveness, probably in an attempt to determine whether sentences laid down by courts are in line with public perceptions on just deserts. This study combines two scales: The first a Likert scale measuring punitiveness as such and the second a "Just Deserts" scale testing public reactions in terms of imprisonment for crime descriptions. By using Pearson's correlation, no positive correlation could be established between these two scales. Profiles of the top and bottom 15% scorers on both scales showed that the scales were, if anything, negatively related. This information is informative in the sense that opinion polls showing public discontentment with sentencing cannot be seen as a true reflection of their reactions to more descriptive cases.<br>Penology<br>M.A. (Penology)

The composite right to meaningful and informed participation in the criminal process comprises the right to information, the right to understand, the right to be prepared, the right to be present, the right to confrontation and the right to present one&#8217;s case. The sub-rights are not of an overarching nature such as the right to legal representation and the right of access to the law. The various rights are grouped together because they show some connection with the ability of the suspect or the accused to participate in the criminal proceedings as a legal subject, and not as an object of the proceedings as in primitive times. These rights ensure that the accused will not participate in the criminal process from an unfavourable position. The heading &#8223;meaningful and informed participation&#8221; is therefore a collective term for these rights. These sub-rights form part of the comprehensive right to a fair trial. The thesis examines aspects of the position of the accused in South Africa and in foreign jurisdictions such as the United States of America, Canada, New Zealand, Australia, Germany, the United Kingdom and Islamic systems. International instruments such as the European Convention for the Protection of Human Rights and decisions of the United Nations Human Rights Committee are also considered. The thesis first considers the historical perspective of the accused in primitive times when he was regarded as an object of the criminal proceedings, to the present time when he is regarded as a subject of the proceedings. The study on foreign jurisdictions reveals that for the most part, our law is in line with the law of other countries. The study also demonstrates that the various rights are not absolute. In exceptional circumstances, some diminution of the accused&#8217;s rights is necessary to protect the interests of society. Nevertheless, the courts should act cautiously and not allow the exceptions to overtake the rule. The judiciary should strive to find a better balance between the constitutional rights of the accused and the interests of society. To this end, the judicial system must be objective yet vigilant.<br>Criminal & Procedural Law<br>LL.D.

The history of the criminal justice system in South Africa, in the last decade is a history dominated by the desire for change and transformation. It will be remembered that we are talking of a system which, in the past, formed part of the State apparatus of a minority government which included racist elements and highly restrictive legal regime in dealing with communities, crime and criminals. The criminal justice system is constituted by four core departments, namely: the South African Police Services; Department of Justice, Correctional Services and Welfare. The argument is whether the volunteers from the community should be involved at all in the fight against crime or not. Some people feel that a system· of justice should be controlled by professionals, who are accountable for their decisions, namely: the Police, Justice, and Correctional Services. However, the research revealed that a system which excludes the community from participating, will render itself ineffective and open to abuse. This topic should be further researched within each department in the criminal justice system in order to explore possibilities of attracting volunteers in the transformation of their respective departments.<br>Penology<br>D.Litt. et Phil. (Penology)