Although South Africa has not directly grappled with whether to extend the protection of the marital privileges to cohabitant life partners, Canada has. The ‘marital privileges’ refer to spousal testimonial privilege and marital communications privilege, collectively, in this article. In 2015, the Canadian legislature abolished spousal testimonial privilege. The marital communications privilege has been retained, and the Canadian courts have considered whether to extend it to cohabitant life partners or abolish it. To gain perspective on whether the marital privileges in South Africa should be retained but reformed, the authors discuss the position in Canada, a constitutionally comparable democracy. The authors consider the scope and applicability of the marital privileges before and after the 2015 Canadian amendments,1 which abrogated spousal testimonial privilege. The authors discuss the abrogation of spousal testimonial privilege in Canada and consider its relevance in the South African context. Also considered is why the marital communications privilege has been retained. This research suggests that while the central rationale for retaining the marital communications privilege is to foster marital relationships and protect the right to privacy, the rationale of dignity also plays a key role. The authors also consider the decision of the European Court of Human Rights dealing with marital communications privilege in The Netherlands. Finally, it will be submitted that whichever view one takes, the marital privileges in South Africa should not be retained in their current form.
{"title":"Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? Part 2","authors":"Samantha Goosen, N. Whitear-Nel","doi":"10.47348/SACJ/V33/I3A5","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A5","url":null,"abstract":"Although South Africa has not directly grappled with whether to extend the protection of the marital privileges to cohabitant life partners, Canada has. The ‘marital privileges’ refer to spousal testimonial privilege and marital communications privilege, collectively, in this article. In 2015, the Canadian legislature abolished spousal testimonial privilege. The marital communications privilege has been retained, and the Canadian courts have considered whether to extend it to cohabitant life partners or abolish it. To gain perspective on whether the marital privileges in South Africa should be retained but reformed, the authors discuss the position in Canada, a constitutionally comparable democracy. The authors consider the scope and applicability of the marital privileges before and after the 2015 Canadian amendments,1 which abrogated spousal testimonial privilege. The authors discuss the abrogation of spousal testimonial privilege in Canada and consider its relevance in the South African context. Also considered is why the marital communications privilege has been retained. This research suggests that while the central rationale for retaining the marital communications privilege is to foster marital relationships and protect the right to privacy, the rationale of dignity also plays a key role. The authors also consider the decision of the European Court of Human Rights dealing with marital communications privilege in The Netherlands. Finally, it will be submitted that whichever view one takes, the marital privileges in South Africa should not be retained in their current form.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115566757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The fact that the police and other security officers are authorised to carry firearms in the performance of their duties does not mean that they can lawfully use them at their whim or caprice. This is especially so if it be said that the objects of the police service are, inter alia, to protect the safety of its members and safeguard the public from harm. Although the primary duty of the police officer is to arrest and bring suspects to justice, however, the question of the wrongful use of their official firearms often comes up for determination. For instance, it is the law that the police can use reasonable force to arrest a suspect who resists arrest or who is violent. The question whether the force used was excessive in the circumstances a police officer finds him/herself is determinative as to whether the state will be held liable for the force used. In determining liability as well as the quantum of damages in these circumstances, one finds that all police shooting cases are not always connected with arrests. Sometimes a police officer shoots at a so-called suspect for no apparent reason, and even where the officer suspects that an offence has been committed, such suspicion may not be reasonable, or sufficient to justify the shooting. This enquiry examines the quantum of damages that have been awarded in South Africa in comparative perspective with the experiences of Lesotho, Malawi, Namibia and Swaziland/Eswatini in instances of unlawful shooting by police officers and further comparative awards made in respect of shootings by other security personnel. It is clear from this study that, owing essentially to the seriousness of the bodily injuries resulting from such shootings, the courts tend to make heavier awards in the circumstances of such shootings than in the normal or straight-forward wrongful arrest and detention cases.
{"title":"Damages for injuries arising from unlawful shooting by police and other security agents: South Africa, Lesotho, Malawi, Namibia and Swaziland/Eswatini (1)","authors":"C. Okpaluba","doi":"10.47348/sacj/v35/i1a3","DOIUrl":"https://doi.org/10.47348/sacj/v35/i1a3","url":null,"abstract":"The fact that the police and other security officers are authorised to carry firearms in the performance of their duties does not mean that they can lawfully use them at their whim or caprice. This is especially so if it be said that the objects of the police service are, inter alia, to protect the safety of its members and safeguard the public from harm. Although the primary duty of the police officer is to arrest and bring suspects to justice, however, the question of the wrongful use of their official firearms often comes up for determination. For instance, it is the law that the police can use reasonable force to arrest a suspect who resists arrest or who is violent. The question whether the force used was excessive in the circumstances a police officer finds him/herself is determinative as to whether the state will be held liable for the force used. In determining liability as well as the quantum of damages in these circumstances, one finds that all police shooting cases are not always connected with arrests. Sometimes a police officer shoots at a so-called suspect for no apparent reason, and even where the officer suspects that an offence has been committed, such suspicion may not be reasonable, or sufficient to justify the shooting. This enquiry examines the quantum of damages that have been awarded in South Africa in comparative perspective with the experiences of Lesotho, Malawi, Namibia and Swaziland/Eswatini in instances of unlawful shooting by police officers and further comparative awards made in respect of shootings by other security personnel. It is clear from this study that, owing essentially to the seriousness of the bodily injuries resulting from such shootings, the courts tend to make heavier awards in the circumstances of such shootings than in the normal or straight-forward wrongful arrest and detention cases.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"2012 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121464513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article, referring to South Africa as well as to selected other common law jurisdictions, proceeds from the premise that it is a well-accepted practice for judges to consider demeanour in assessing the credibility of a witness and in assessing whether the accused shows remorse when decisions regarding sentences are taken. However, the article also takes cognisance of the fact that there is a lack of generally agreed-upon objective methods for the identification of remorse. The article was prompted by recent health precautions regarding the mandatory use of face masks, in order to protect people and to contain the spread of the coronavirus, which provides an opportunity to review demeanour in general and perceptions concerning facial demeanour or facial expressions in the courtroom, in particular. The article explores the validity and reliability of findings on remorse and of making credibility assessments based on demeanour evidence. Part 1 of the article is an introduction. Part 2 of the article provides a brief overview of credibility and demeanour evidence in the courtroom. Part 3 of the article examines remorse and demeanour evidence in criminal trials. Part 4 of the article considers demeanour evidence as a ‘tricky horse to ride’. Part 5 of the article provides a discussion of empirical research studies in the field of social psychology relevant to the reliability of finding credibility and remorse on the basis of demeanour evidence. Part 6 briefly discusses COVID-19 face-covering regulations and demeanour evidence in the criminal trial. The article emphasises that although non-verbal cues could be valuable to judges, such evidence may be unreliable and that courts have cautioned against demeanour evidence being afforded undue importance. The article concludes that even when facial expressions are available to the court, it would be in the interests of justice to exercise great care concerning demeanour in general and facial expressions in particular as a guide to assessing credibility and the existence of remorse.
{"title":"Demeanour, credibility and remorse in the criminal trial","authors":"A. Olaborede, L. M. D. Walt","doi":"10.47348/SACJ/V34/I1A3","DOIUrl":"https://doi.org/10.47348/SACJ/V34/I1A3","url":null,"abstract":"This article, referring to South Africa as well as to selected other common law jurisdictions, proceeds from the premise that it is a well-accepted practice for judges to consider demeanour in assessing the credibility of a witness and in assessing whether the accused shows remorse when decisions regarding sentences are taken. However, the article also takes cognisance of the fact that there is a lack of generally agreed-upon objective methods for the identification of remorse. The article was prompted by recent health precautions regarding the mandatory use of face masks, in order to protect people and to contain the spread of the coronavirus, which provides an opportunity to review demeanour in general and perceptions concerning facial demeanour or facial expressions in the courtroom, in particular. The article explores the validity and reliability of findings on remorse and of making credibility assessments based on demeanour evidence. Part 1 of the article is an introduction. Part 2 of the article provides a brief overview of credibility and demeanour evidence in the courtroom. Part 3 of the article examines remorse and demeanour evidence in criminal trials. Part 4 of the article considers demeanour evidence as a ‘tricky horse to ride’. Part 5 of the article provides a discussion of empirical research studies in the field of social psychology relevant to the reliability of finding credibility and remorse on the basis of demeanour evidence. Part 6 briefly discusses COVID-19 face-covering regulations and demeanour evidence in the criminal trial. The article emphasises that although non-verbal cues could be valuable to judges, such evidence may be unreliable and that courts have cautioned against demeanour evidence being afforded undue importance. The article concludes that even when facial expressions are available to the court, it would be in the interests of justice to exercise great care concerning demeanour in general and facial expressions in particular as a guide to assessing credibility and the existence of remorse.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126518625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines rape in the following terms: ‘Any person (‘A’) who unlawfully and intentionally, commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.’ This paper focuses on one component of the definition, namely fault. It is argued that a mistaken but unreasonable belief in consent should not be recognised as a defence and that a normative approach could soften the focus on the behaviour of the complainant and send a clear signal that our commitment to constitutional values requires us to take due care in our interactions with others. The argument is made with full awareness that law reform is a very small cog in addressing the scourge of rape.
{"title":"Rape: An unreasonable belief in consent should not be a defence","authors":"PJ Schwikkard","doi":"10.47348/SACJ/V34/I1A4","DOIUrl":"https://doi.org/10.47348/SACJ/V34/I1A4","url":null,"abstract":"Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines rape in the following terms: ‘Any person (‘A’) who unlawfully and intentionally, commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.’ This paper focuses on one component of the definition, namely fault. It is argued that a mistaken but unreasonable belief in consent should not be recognised as a defence and that a normative approach could soften the focus on the behaviour of the complainant and send a clear signal that our commitment to constitutional values requires us to take due care in our interactions with others. The argument is made with full awareness that law reform is a very small cog in addressing the scourge of rape.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"2015 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128067418","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Seychellois Employment Tribunal was established under s 73A of the Employment Act (the Act). Section 6(3)(1) of Schedule 6 to the Act provides that ‘the Tribunal shall have exclusive jurisdiction to hear and determine employment and labour related matters’. Under the Act, employment and labour matters can be divided into two categories: civil and criminal. Section 76 of the Act provides for employment and labour-related offences. The Tribunal started operation in November 2008. Between 3 December 2008 (when the Tribunal handed down its first decision) and 1 December 2021 (when the research for this article was conducted) the Tribunal received 2,478 civil cases and 172 criminal cases. The author studied the criminal cases/files and on the basis of that study. The aim of the study is to illustrate how the Tribunal has interpreted and/or applied s 76 of the Act when dealing with the following issues: the offences under the Act; the prosecution of the offences under the Act; the right to a fair trial; the burden(s) of proof under s 76 of Act; the prosecution of legal persons/companies before the Tribunal; and penalty and sentencing issues. The author argues, inter alia, that the Tribunal should respect the principle of corporate legal personality when dealing with juristic persons accused of committing offences; the reverse onus under s 76(3) of the Act is not unconstitutional; during sentencing, the Tribunal should clearly distinguish between mitigating factors that are applicable to juristic persons and those applicable to natural persons; and that the Attorney-General does not need the consent of the competent officer before he/she can institute a prosecution before the Tribunal.
{"title":"The criminal jurisdiction of the Seychelles Employment Tribunal","authors":"J. D. Mujuzi","doi":"10.47348/sacj/v35/i2a4","DOIUrl":"https://doi.org/10.47348/sacj/v35/i2a4","url":null,"abstract":"The Seychellois Employment Tribunal was established under s 73A of the Employment Act (the Act). Section 6(3)(1) of Schedule 6 to the Act provides that ‘the Tribunal shall have exclusive jurisdiction to hear and determine employment and labour related matters’. Under the Act, employment and labour matters can be divided into two categories: civil and criminal. Section 76 of the Act provides for employment and labour-related offences. The Tribunal started operation in November 2008. Between 3 December 2008 (when the Tribunal handed down its first decision) and 1 December 2021 (when the research for this article was conducted) the Tribunal received 2,478 civil cases and 172 criminal cases. The author studied the criminal cases/files and on the basis of that study. The aim of the study is to illustrate how the Tribunal has interpreted and/or applied s 76 of the Act when dealing with the following issues: the offences under the Act; the prosecution of the offences under the Act; the right to a fair trial; the burden(s) of proof under s 76 of Act; the prosecution of legal persons/companies before the Tribunal; and penalty and sentencing issues. The author argues, inter alia, that the Tribunal should respect the principle of corporate legal personality when dealing with juristic persons accused of committing offences; the reverse onus under s 76(3) of the Act is not unconstitutional; during sentencing, the Tribunal should clearly distinguish between mitigating factors that are applicable to juristic persons and those applicable to natural persons; and that the Attorney-General does not need the consent of the competent officer before he/she can institute a prosecution before the Tribunal.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"137 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134162319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recidivists are chronic, multiple or prolific offenders. They continue to commit crimes regardless of punishment. Recidivism is a worldwide problem which has persisted over the years. A University of Nairobi study conducted in Nairobi County, Kenya on the linkage between punishment and recidivism which involved recidivist prisoners at Kamiti Maximum Security Prison and Langata Prison; male and female institutions respectively, sought to, among others, analyse the broad characteristics of recidivists in the two institutions. The study purposively selected a sample of 167 participants, and collected data by use of questionnaires, focus group discussions and key informant interviews. Both quantitative and qualitative techniques were utilised in data analysis. The study established that the majority of the recidivists are males, and young adults or individuals in middle age who are either illiterate or semiliterate. They are also not in marital relationships, and are members of the lower social classes among other characteristics. This paper presents a literature review on challenges facing prison institutions in Kenya, causes and control strategies of recidivism among prisoners, general socio-demographic and personality characteristics of recidivists, and the study findings on the profile of the recidivists in Kenya.
{"title":"The profile of recidivists in Kenya: The case of prisoners at Nairobi county prison institutions","authors":"J. Omboto, G. Wairire, M. Chepkong’a","doi":"10.47348/SACJ/V33/I3A10","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A10","url":null,"abstract":"Recidivists are chronic, multiple or prolific offenders. They continue to commit crimes regardless of punishment. Recidivism is a worldwide problem which has persisted over the years. A University of Nairobi study conducted in Nairobi County, Kenya on the linkage between punishment and recidivism which involved recidivist prisoners at Kamiti Maximum Security Prison and Langata Prison; male and female institutions respectively, sought to, among others, analyse the broad characteristics of recidivists in the two institutions. The study purposively selected a sample of 167 participants, and collected data by use of questionnaires, focus group discussions and key informant interviews. Both quantitative and qualitative techniques were utilised in data analysis. The study established that the majority of the recidivists are males, and young adults or individuals in middle age who are either illiterate or semiliterate. They are also not in marital relationships, and are members of the lower social classes among other characteristics. This paper presents a literature review on challenges facing prison institutions in Kenya, causes and control strategies of recidivism among prisoners, general socio-demographic and personality characteristics of recidivists, and the study findings on the profile of the recidivists in Kenya.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127637251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Recent Case: Criminal Law: General principles and specific offences","authors":"Delano Cole Van der Linde","doi":"10.47348/sacj/v35/i1a5","DOIUrl":"https://doi.org/10.47348/sacj/v35/i1a5","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"35 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126597482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transitional justice developed as a pragmatic concept prescribing a set of mechanisms to be used by societies or countries experiencing systematic periods of armed conflicts or emerging from authoritarian regimes characterised by egregious violations of human rights or humanitarian law. While relative success stories of its utilisation have been recorded, questions have been raised regarding the recent tendency to prescribe transitional justice for societies which have not or are yet to undergo any transition. Through its lack of success in Nigeria and debatable effectiveness in Uganda, the article shows that transitional justice mechanisms are not a cure-all. While it does not contend that there is a perfect notion of transitional justice, the article proposes that transitional justice mechanisms must be designed from the ground up, with the victims at the centre of the process. While transitional justice is a global project, this article argues that its success can be achieved when its applicability and administration take into account the contextual and indigenous focus with a move towards localising its mechanisms.
{"title":"Too much of a good thing: When transitional justice prescriptions may not work","authors":"VO Ojo, N. Filbert","doi":"10.47348/SACJ/V33/I3A1","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A1","url":null,"abstract":"Transitional justice developed as a pragmatic concept prescribing a set of mechanisms to be used by societies or countries experiencing systematic periods of armed conflicts or emerging from authoritarian regimes characterised by egregious violations of human rights or humanitarian law. While relative success stories of its utilisation have been recorded, questions have been raised regarding the recent tendency to prescribe transitional justice for societies which have not or are yet to undergo any transition. Through its lack of success in Nigeria and debatable effectiveness in Uganda, the article shows that transitional justice mechanisms are not a cure-all. While it does not contend that there is a perfect notion of transitional justice, the article proposes that transitional justice mechanisms must be designed from the ground up, with the victims at the centre of the process. While transitional justice is a global project, this article argues that its success can be achieved when its applicability and administration take into account the contextual and indigenous focus with a move towards localising its mechanisms.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133078477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 78 of the Correctional Services Act (the Act) empowers the Minister of Justice and Correctional Services (the minister) to grant parole to an offender serving a life sentence (lifer). Between 2004 and 2008, a court had the power to place a lifer on parole. However, this power was transferred from the court to the minister in 2008. In Walus v Minister of Justice and Correctional Services, the Constitutional Court relied on the pre-2008 version of s 78 of the Act to hold that a court has the power to release a lifer on parole. The court ordered the minister to place the offender on parole after finding that the decision to decline his parole application was irrational. It is argued that although the court correctly invoked the principle of rationality to order the minister to place the offender on parole, it erred when it held that s 78 of the Correctional Services Act empowered it to order the minister to place the offender on parole. It is also argued that the court erred when it equated the non-parole period with a sentencing remark. It is argued further that since rehabilitation is the most important factor in deciding whether an offender should be granted parole, the Correctional Services Act may have to be amended to provide for the offender’s right to access effective rehabilitation programmes.
{"title":"Court’s power to order the minister to place a prisoner on parole in South Africa: Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC)","authors":"J. D. Mujuzi","doi":"10.47348/sacj/v36/i1a3","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a3","url":null,"abstract":"Section 78 of the Correctional Services Act (the Act) empowers the Minister of Justice and Correctional Services (the minister) to grant parole to an offender serving a life sentence (lifer). Between 2004 and 2008, a court had the power to place a lifer on parole. However, this power was transferred from the court to the minister in 2008. In Walus v Minister of Justice and Correctional Services, the Constitutional Court relied on the pre-2008 version of s 78 of the Act to hold that a court has the power to release a lifer on parole. The court ordered the minister to place the offender on parole after finding that the decision to decline his parole application was irrational. It is argued that although the court correctly invoked the principle of rationality to order the minister to place the offender on parole, it erred when it held that s 78 of the Correctional Services Act empowered it to order the minister to place the offender on parole. It is also argued that the court erred when it equated the non-parole period with a sentencing remark. It is argued further that since rehabilitation is the most important factor in deciding whether an offender should be granted parole, the Correctional Services Act may have to be amended to provide for the offender’s right to access effective rehabilitation programmes.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114672247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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