Homelessness is widely seen as a persistent social issue, one that has existed for many years. Although notably under-researched, there exist some reports of severe experiences of victimisation. Due to the very nature of their lifestyle and other external factors, homeless individuals can expect to, and often do experience violence and victimisation at disproportionate rates. Furthermore, homeless individuals are commonly viewed as a surplus population or a disposable mass that cannot possibly be regarded as what society considers an ‘ideal victim’. With the presence of negative socially constructed labels, they are frequently exposed to harsh treatment by other members of society and consequently stripped of their basic constitutional rights, where in many contexts, their very existence is criminalised. Protective legislation at a domestic level is a neglected area and is yet to align with some major international developments, where homeless victimisation has already been identified as a serious enough problem that arguments for its inclusion under hate crime legislation have already started to surface. This paper therefore aims to put forward an argument regarding the plausibility of including the status of homelessness as a new category under the developing Hate Crime and Hate Speech Bill of South Africa.
{"title":"Homeless victimisation in South Africa and its potential inclusion in the Hate Crime and Hate Speech Bill","authors":"Jean-Paul Pophaim","doi":"10.47348/sacj/v34/i2a5","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a5","url":null,"abstract":"Homelessness is widely seen as a persistent social issue, one that has existed for many years. Although notably under-researched, there exist some reports of severe experiences of victimisation. Due to the very nature of their lifestyle and other external factors, homeless individuals can expect to, and often do experience violence and victimisation at disproportionate rates. Furthermore, homeless individuals are commonly viewed as a surplus population or a disposable mass that cannot possibly be regarded as what society considers an ‘ideal victim’. With the presence of negative socially constructed labels, they are frequently exposed to harsh treatment by other members of society and consequently stripped of their basic constitutional rights, where in many contexts, their very existence is criminalised. Protective legislation at a domestic level is a neglected area and is yet to align with some major international developments, where homeless victimisation has already been identified as a serious enough problem that arguments for its inclusion under hate crime legislation have already started to surface. This paper therefore aims to put forward an argument regarding the plausibility of including the status of homelessness as a new category under the developing Hate Crime and Hate Speech Bill of South Africa.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"1 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":"126006270","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":"Note: Towards filling the gaps in the public violence judgment of S v Mei","authors":"Khulekani Khumalo","doi":"10.47348/sacj/v34/i2a9","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"45 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":"127278140","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}
It is a safe assumption that robbery exists, as a crime, in virtually every legal system. Very broadly spoken, it is a crime that consists of the forceful taking of another person’s property. Robbery is often regarded as one of the more serious crimes that can be committed. Such seriousness is then reflected in the severity of the sentence imposed on the robber. However, not all robberies are equally serious. What factors determine whether one robbery is more or less serious than another? From a South African perspective, the answer to this question is far from certain. This uncertainty exists even though robbery is prevalent – in other words, there is much potential in South African criminal justice to provide a more certain answer. This contribution explains how South African courts approach sentencing for robbery. It starts by briefly discussing the definition of robbery and then moves to principles governing sentencing in South Africa in general, and the sentencing of robbery in particular.1 I then briefly discuss the same subject matter in German law. Finally, the contribution analyses the most pressing issues afflicting sentencing in South Africa and, in this process, contrasts the legal principles that are in place in Germany.
{"title":"Comparing sentencing for robbery with Strafzumessung für Raub","authors":"S. Terblanche","doi":"10.47348/sacj/v35/i2a2","DOIUrl":"https://doi.org/10.47348/sacj/v35/i2a2","url":null,"abstract":"It is a safe assumption that robbery exists, as a crime, in virtually every legal system. Very broadly spoken, it is a crime that consists of the forceful taking of another person’s property. Robbery is often regarded as one of the more serious crimes that can be committed. Such seriousness is then reflected in the severity of the sentence imposed on the robber. However, not all robberies are equally serious. What factors determine whether one robbery is more or less serious than another? From a South African perspective, the answer to this question is far from certain. This uncertainty exists even though robbery is prevalent – in other words, there is much potential in South African criminal justice to provide a more certain answer. This contribution explains how South African courts approach sentencing for robbery. It starts by briefly discussing the definition of robbery and then moves to principles governing sentencing in South Africa in general, and the sentencing of robbery in particular.1 I then briefly discuss the same subject matter in German law. Finally, the contribution analyses the most pressing issues afflicting sentencing in South Africa and, in this process, contrasts the legal principles that are in place in Germany.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"19 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":"129364214","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: General Principles and Specific Offences","authors":"S. Hoctor","doi":"10.47348/SACJ/V33/I3A12","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A12","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"7 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":"114303160","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}
As forensic scientific evidence becomes not only more advanced but progressively more important in criminal trials, so too does the pressure on presiding officers to accurately assess such evidence, not only for admissibility but also reliability. In the United States of America (USA), judges are mandated to act as gatekeepers of expert opinion and as such are tempted to engage in independent judicial research of science and medicine to accurately fulfil this gatekeeping duty. This temptation is intensified by the information explosion on the Internet and the vast array of available information, both legal and non-legal in nature. While courts are entitled to conduct legal research in deciding disputes, controversy and ambiguity exist on whether judicial research on facts should be allowed. In South Africa, the Constitutional Court in S v Van der Walt 2020 (2) SACR 371 (CC) focused on procedural fairness and held that independent judicial research violates accused persons’ right to challenge evidence in terms of s 35(3)(i) of the Constitution. But a blanket prohibition on this type of judicial research excludes many significant advantages that could potentially secure more accurate decisions. This article considers the legal positions on independent judicial research in the USA and South Africa, reviews the pros and cons of such research, and finds that a flexible approach might alleviate some dangers and exploit some advantages.
随着法医科学证据不仅越来越先进，而且在刑事审判中越来越重要，主审官员也面临着准确评估这些证据的压力，不仅要考虑到证据的可采性，还要考虑到证据的可靠性。在美利坚合众国(美国)，法官的任务是充当专家意见的守门人，因此他们受到诱惑，从事科学和医学的独立司法研究，以准确地履行这一守门人的职责。互联网上的信息爆炸和大量可获得的信息(既有合法的，也有非法的)加剧了这种诱惑。法院在裁决纠纷时有权进行法律研究，但是否允许对事实进行司法研究存在争议和歧义。在南非，宪法法院在S v Van der Walt 2020 (2) SACR 371 (CC)一案中侧重于程序公平，并认为独立的司法研究侵犯了《宪法》第35(3)(i)条规定的被告质疑证据的权利。但是，全面禁止这种类型的司法研究排除了许多可能获得更准确裁决的重要优势。本文从美国和南非独立司法研究的法律立场出发，对独立司法研究的利弊进行了分析，发现灵活的方法可以减轻一些危险，发挥一些优势。
{"title":"Independent judicial research of forensic evidence in criminal trials – A South African perspective","authors":"J. Visser","doi":"10.47348/sacj/v34/i3a1","DOIUrl":"https://doi.org/10.47348/sacj/v34/i3a1","url":null,"abstract":"As forensic scientific evidence becomes not only more advanced but progressively more important in criminal trials, so too does the pressure on presiding officers to accurately assess such evidence, not only for admissibility but also reliability. In the United States of America (USA), judges are mandated to act as gatekeepers of expert opinion and as such are tempted to engage in independent judicial research of science and medicine to accurately fulfil this gatekeeping duty. This temptation is intensified by the information explosion on the Internet and the vast array of available information, both legal and non-legal in nature. While courts are entitled to conduct legal research in deciding disputes, controversy and ambiguity exist on whether judicial research on facts should be allowed. In South Africa, the Constitutional Court in S v Van der Walt 2020 (2) SACR 371 (CC) focused on procedural fairness and held that independent judicial research violates accused persons’ right to challenge evidence in terms of s 35(3)(i) of the Constitution. But a blanket prohibition on this type of judicial research excludes many significant advantages that could potentially secure more accurate decisions. This article considers the legal positions on independent judicial research in the USA and South Africa, reviews the pros and cons of such research, and finds that a flexible approach might alleviate some dangers and exploit some advantages.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"11 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":"125583303","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":"Comment: Distinguishing between dolus directus and dolus eventualis: Ngobeni v The State (1041/2017) ZASCA 127 (27 September 2018)","authors":"B. Tshehla","doi":"10.47348/SACJ/V34/I1A7","DOIUrl":"https://doi.org/10.47348/SACJ/V34/I1A7","url":null,"abstract":"<jats:p>None.</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"29 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":"121713817","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: Law of Evidence","authors":"Nicci Whitear Nel","doi":"10.47348/SACJ/V34/I1A9","DOIUrl":"https://doi.org/10.47348/SACJ/V34/I1A9","url":null,"abstract":"<jats:p>None.</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"311 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":"121831861","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 examines DNA phenotyping in general and highlights international perspectives regarding the use of this technique. The article interrogates the genetic basis of predicting externally visible characteristics, the potential value of the technique, and the pitfalls regarding its use. Despite the ethical and legal concerns and debates concerning DNA phenotyping, the potential value of this technique should not be underestimated. In the context of the high number of serious crimes such as rape and murder that remain unsolved in South Africa, the responsible and scientific application of DNA phenotyping might prove to be an effective additional tool in criminal investigation.
{"title":"DNA phenotyping: A possible aid in criminal investigation","authors":"Lirieka Meintjes-van der Walt, A. Olaborede","doi":"10.47348/sacj/v36/i1a1","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a1","url":null,"abstract":"This article examines DNA phenotyping in general and highlights international perspectives regarding the use of this technique. The article interrogates the genetic basis of predicting externally visible characteristics, the potential value of the technique, and the pitfalls regarding its use. Despite the ethical and legal concerns and debates concerning DNA phenotyping, the potential value of this technique should not be underestimated. In the context of the high number of serious crimes such as rape and murder that remain unsolved in South Africa, the responsible and scientific application of DNA phenotyping might prove to be an effective additional tool in criminal investigation.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"38 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":"125043446","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 discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).
{"title":"Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)","authors":"C. Okpaluba","doi":"10.47348/SACJ/V33/I3A6","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A6","url":null,"abstract":"The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"33 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":"130943098","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}
In the past fifteen years, South Africa has embarked on substantial reform of its sexual offences laws. In many respects, these reforms are like those in other jurisdictions, addressing issues of definition and sentencing. Yet the country’s rape statistics remain startlingly high, and rape sentencing remains inconsistent. To assess the adequacy of rape criminalisation in South Africa, this article starts off with an overview of relevant local case law. It becomes clear that, although the state is not always consistent in prosecuting the accused of all variants of sexual penetration, prosecution in terms of the current, broader definition of rape is common, as is the imposition of minimum sentences for these convictions. Also, courts remain inconsistent in interpreting which factors should count as substantial and compelling circumstances to justify a lesser sentence. A comparative look at the legal position in England and Canada firstly confirms that rape remains a global concern, and that South Africa is not the only jurisdiction that has grappled with defining and sentencing the offence. Yet South Africa could stand to learn a few lessons from these two countries to further improve its law on rape. Recommendations include adopting a more succinct definition of rape, introducing more conduct-specific charges and sentencing (similar to England’s ‘assault by penetration’), and providing a well-defined list of substantial and compelling circumstances to establish greater legal clarity in the sentencing of rape offenders.
{"title":"The adequacy of rape criminalisation in modern South Africa: A comparative study","authors":"Rinda Botha, Janine Peens","doi":"10.47348/sacj/v36/i1a5","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a5","url":null,"abstract":"In the past fifteen years, South Africa has embarked on substantial reform of its sexual offences laws. In many respects, these reforms are like those in other jurisdictions, addressing issues of definition and sentencing. Yet the country’s rape statistics remain startlingly high, and rape sentencing remains inconsistent. To assess the adequacy of rape criminalisation in South Africa, this article starts off with an overview of relevant local case law. It becomes clear that, although the state is not always consistent in prosecuting the accused of all variants of sexual penetration, prosecution in terms of the current, broader definition of rape is common, as is the imposition of minimum sentences for these convictions. Also, courts remain inconsistent in interpreting which factors should count as substantial and compelling circumstances to justify a lesser sentence. A comparative look at the legal position in England and Canada firstly confirms that rape remains a global concern, and that South Africa is not the only jurisdiction that has grappled with defining and sentencing the offence. Yet South Africa could stand to learn a few lessons from these two countries to further improve its law on rape. Recommendations include adopting a more succinct definition of rape, introducing more conduct-specific charges and sentencing (similar to England’s ‘assault by penetration’), and providing a well-defined list of substantial and compelling circumstances to establish greater legal clarity in the sentencing of rape offenders.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"11 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":"133523851","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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