{"title":"Recent Case: General principles and specific offences","authors":"Delano Cole Van der Linde","doi":"10.47348/sacj/v36/i1a6","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a6","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"12 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":"128627945","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 is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.
{"title":"The Black Flame (part two): Snyman’s Criminal Law","authors":"T. Mosaka","doi":"10.47348/sacj/v34/i3a2","DOIUrl":"https://doi.org/10.47348/sacj/v34/i3a2","url":null,"abstract":"This is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"247 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133587902","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: Previous consistent statements – the sexual offence anomaly","authors":"Delano Cole Van der Linde","doi":"10.47348/sacj/v35/i1a4","DOIUrl":"https://doi.org/10.47348/sacj/v35/i1a4","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"30 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":"122146536","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}
South Africans have become accustomed to almost daily news reports of litigation in our courts that involve politically powerful and well-connected individuals. The perception by the public is that in many instances litigants approach the courts for other reasons than achieving justice and are therefore misusing our courts and its processes.1 This becomes a matter of concern when such perceptions affect the trust and confidence that the public holds in respect of the judicial system and the rule of law. The recent Free State asbestos pre-trial motion proceedings illustrate some of these concerns. This article first comments on the judgment of the Free State high court in this matter, and focusses on the unmeritorious aspects of the applications made. These aspects included a claim that the applicants’ right to a fair trial were infringed, and the applicants’ disregard for the established principle against preliminary civil motions emanating from criminal proceedings. Legal practitioners advise their clients and must do so responsibly. For that reason, the second part of the article comments on the professional rules of conduct against the abuse of the court process in relation to legal practitioners’ obligations to both their clients and the court. This duty includes not to litigate causes or raise defences that have little chance of success or where they are initiated by litigants for purposes other than achieving justice. Improper purposes include delaying the proceedings to escape criminal liability and ultimately, accountability. In order to curb pre-trial litigation in any court other than the criminal trial court, the article proposes an extension of the Criminal Procedure Act to clarify when such other court may be approached for relief. It also proposes that a certificate of probable cause accompanies all pre-trial motions that emanate from criminal proceedings in a court other than the trial court.
{"title":"Fair trial rights, pre-trial civil motions in pending criminal cases and abuse of court process with reference to the Free State asbestos pre-trial motion proceedings","authors":"C. Swanepoel","doi":"10.47348/sacj/v36/i1a2","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a2","url":null,"abstract":"South Africans have become accustomed to almost daily news reports of litigation in our courts that involve politically powerful and well-connected individuals. The perception by the public is that in many instances litigants approach the courts for other reasons than achieving justice and are therefore misusing our courts and its processes.1 This becomes a matter of concern when such perceptions affect the trust and confidence that the public holds in respect of the judicial system and the rule of law. The recent Free State asbestos pre-trial motion proceedings illustrate some of these concerns. This article first comments on the judgment of the Free State high court in this matter, and focusses on the unmeritorious aspects of the applications made. These aspects included a claim that the applicants’ right to a fair trial were infringed, and the applicants’ disregard for the established principle against preliminary civil motions emanating from criminal proceedings. Legal practitioners advise their clients and must do so responsibly. For that reason, the second part of the article comments on the professional rules of conduct against the abuse of the court process in relation to legal practitioners’ obligations to both their clients and the court. This duty includes not to litigate causes or raise defences that have little chance of success or where they are initiated by litigants for purposes other than achieving justice. Improper purposes include delaying the proceedings to escape criminal liability and ultimately, accountability. In order to curb pre-trial litigation in any court other than the criminal trial court, the article proposes an extension of the Criminal Procedure Act to clarify when such other court may be approached for relief. It also proposes that a certificate of probable cause accompanies all pre-trial motions that emanate from criminal proceedings in a court other than the trial court.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"141 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":"116978034","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","doi":"10.47348/sacj/v35/i1a7","DOIUrl":"https://doi.org/10.47348/sacj/v35/i1a7","url":null,"abstract":"<jats:p>None</jats:p>","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":"117076572","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: Sentencing","authors":"Annette van der Merwe","doi":"10.47348/sacj/v35/i2a8","DOIUrl":"https://doi.org/10.47348/sacj/v35/i2a8","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"27 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":"128327157","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":"Lirieka Meintjes-van der Walt","doi":"10.47348/sacj/v34/i3a6","DOIUrl":"https://doi.org/10.47348/sacj/v34/i3a6","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"234 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":"122934753","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 latest edition of Snyman’s Criminal Law has reached the status of scholarly immortality. It has been revised by Hoctor, but Snyman’s name lives on. This is consistent with the argument made in Part one of the review of this book. This is a review conducted through a trilogy of papers, analogous to WEB du Bois’s trilogy of novels entitled the Black Flame. Part one begins by clarifying why this review is conducted in this way. The paper then proceeds to contextualise Snyman’s Criminal Law alongside the two dominant traditions of South African criminal law, following the work of Gardiner and Lansdown and De Wet and Swanepoel. Thirdly, the paper concludes by developing the argument that South African criminal law remains in a perpetual northbound-gaze towards Europe and away from Africa. This theme is developed further in Parts two and three of this review.
{"title":"The Black Flame (part one): Snyman’s Criminal Law","authors":"T. Mosaka","doi":"10.47348/sacj/v34/i2a3","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a3","url":null,"abstract":"The latest edition of Snyman’s Criminal Law has reached the status of scholarly immortality. It has been revised by Hoctor, but Snyman’s name lives on. This is consistent with the argument made in Part one of the review of this book. This is a review conducted through a trilogy of papers, analogous to WEB du Bois’s trilogy of novels entitled the Black Flame. Part one begins by clarifying why this review is conducted in this way. The paper then proceeds to contextualise Snyman’s Criminal Law alongside the two dominant traditions of South African criminal law, following the work of Gardiner and Lansdown and De Wet and Swanepoel. Thirdly, the paper concludes by developing the argument that South African criminal law remains in a perpetual northbound-gaze towards Europe and away from Africa. This theme is developed further in Parts two and three of this review.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"21 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":"125694259","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}
Image-based sexual abuse, more popularly but inadequately referred to as ‘revenge porn’, has emerged as a prolific modern-day plague. This author asserts that, in light of its impact and severity, the criminal law, as opposed to private law remedies, is the preferable legal response to image-based sexual abuse (IBSA). Thus, it is commendable that South African lawmakers have responded to IBSA with criminal sanctions, specifically targeting this phenomenon through s 18F of the Films and Publications Amendment Act 11 of 2019 and s 16 of the Cybercrimes Act 19 of 2020. Despite having two acts responding to one problem, these new legislative additions mix admirably with the existing offence of crimen injuria in providing adequate protection for victims of IBSA in South Africa. Where the broadly defined offence of crimen injuria lacks detail, s 18F and s 16 provide more precision. Section 18F and s 16, although not without internal issues, clarify the extent of unlawful conduct, provide clear penalty guidelines, highlight the intolerable nature of IBSA and offer additional support measures to victims of IBSA through protective orders. However, while advantageous, these legislative additions may not respond effectively to all cases of IBSA, especially when s 18F and s 16 are overly restrictive in application. Where the perpetration of IBSA warrants a harsher penalty than what is stipulated in both Acts or where IBSA subtly evades the protection of both Acts, the offence of crimen injuria provides a flexible alternative. It is this mutually supportive interplay that validates the assertion that South African law does provide adequately for victims of IBSA.
{"title":"Mixing old and new wisdom for the protection of image-based sexual abuse victims","authors":"BN Martin","doi":"10.47348/sacj/v35/i3a2","DOIUrl":"https://doi.org/10.47348/sacj/v35/i3a2","url":null,"abstract":"Image-based sexual abuse, more popularly but inadequately referred to as ‘revenge porn’, has emerged as a prolific modern-day plague. This author asserts that, in light of its impact and severity, the criminal law, as opposed to private law remedies, is the preferable legal response to image-based sexual abuse (IBSA). Thus, it is commendable that South African lawmakers have responded to IBSA with criminal sanctions, specifically targeting this phenomenon through s 18F of the Films and Publications Amendment Act 11 of 2019 and s 16 of the Cybercrimes Act 19 of 2020. Despite having two acts responding to one problem, these new legislative additions mix admirably with the existing offence of crimen injuria in providing adequate protection for victims of IBSA in South Africa. Where the broadly defined offence of crimen injuria lacks detail, s 18F and s 16 provide more precision. Section 18F and s 16, although not without internal issues, clarify the extent of unlawful conduct, provide clear penalty guidelines, highlight the intolerable nature of IBSA and offer additional support measures to victims of IBSA through protective orders. However, while advantageous, these legislative additions may not respond effectively to all cases of IBSA, especially when s 18F and s 16 are overly restrictive in application. Where the perpetration of IBSA warrants a harsher penalty than what is stipulated in both Acts or where IBSA subtly evades the protection of both Acts, the offence of crimen injuria provides a flexible alternative. It is this mutually supportive interplay that validates the assertion that South African law does provide adequately for victims of IBSA.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"55 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":"133887143","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 National Prosecuting Authority has issued a comprehensive document containing policy directives that are available only to prosecutors. This document makes provision for non-criminal dispute resolution mechanisms in the form of diversions and informal mediations where the offender is an adult. It seems as if a large number of less severe cases are disposed of in this way every year. The directives are not in the public domain, and their scope and application are shrouded in a cloud of secrecy. This contribution analyses the alternative dispute mechanisms of diversion and informal mediation available to prosecutors, which are referred to as non-criminal dispute resolution mechanisms, with the aim to propose ways to effect reform in this area.
{"title":"Non-criminal dispute resolution in South Africa’s criminal justice system: Proposals for reform","authors":"Navilla Somaru, Christa Rautenbach","doi":"10.47348/SACJ/V33/I3A7","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A7","url":null,"abstract":"The National Prosecuting Authority has issued a comprehensive document containing policy directives that are available only to prosecutors. This document makes provision for non-criminal dispute resolution mechanisms in the form of diversions and informal mediations where the offender is an adult. It seems as if a large number of less severe cases are disposed of in this way every year. The directives are not in the public domain, and their scope and application are shrouded in a cloud of secrecy. This contribution analyses the alternative dispute mechanisms of diversion and informal mediation available to prosecutors, which are referred to as non-criminal dispute resolution mechanisms, with the aim to propose ways to effect reform in this area.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"23 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":"131379394","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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