Article 23(6)(a) of the Constitution of Uganda (1995) states that an arrested person is ‘entitled’ to apply to court for bail (discretionary bail). Articles 23(b) and (c) require a court to release on bail a person who has been awaiting trial in custody for a specified number of days (mandatory bail). Jurisprudence of Ugandan courts on bail pending trial shows that courts have dealt with two main issues: the right to bail or to apply for bail; and the conditions for granting of discretionary bail pending trial. The Supreme Court has held that an accused has a right to apply for bail. In this article, the author argues that the drafting history of Article 23(6)(a) shows that an accused has a right to bail (as opposed to just apply for bail). The author also demonstrates how courts have been inconsistent in many cases when dealing with the conditions for granting of discretionary bail pending trial. It is argued further that since the Ugandan government is increasingly re-arresting opposition politicians who have been granted bail by the high court, Ugandan courts may explore the possibility of granting anticipatory bail. It is also argued that the drafting history of Articles 129(d) and 210 of the Constitution shows that courts martial are courts of judicature and subordinate to the high court which means, inter alia, that the high court has the power to release an accused on bail should the general court martial refuse to release him/her on bail.
{"title":"The right to bail pending trial in Uganda","authors":"J. D. Mujuzi","doi":"10.47348/sacj/v34/i3a3","DOIUrl":"https://doi.org/10.47348/sacj/v34/i3a3","url":null,"abstract":"Article 23(6)(a) of the Constitution of Uganda (1995) states that an arrested person is ‘entitled’ to apply to court for bail (discretionary bail). Articles 23(b) and (c) require a court to release on bail a person who has been awaiting trial in custody for a specified number of days (mandatory bail). Jurisprudence of Ugandan courts on bail pending trial shows that courts have dealt with two main issues: the right to bail or to apply for bail; and the conditions for granting of discretionary bail pending trial. The Supreme Court has held that an accused has a right to apply for bail. In this article, the author argues that the drafting history of Article 23(6)(a) shows that an accused has a right to bail (as opposed to just apply for bail). The author also demonstrates how courts have been inconsistent in many cases when dealing with the conditions for granting of discretionary bail pending trial. It is argued further that since the Ugandan government is increasingly re-arresting opposition politicians who have been granted bail by the high court, Ugandan courts may explore the possibility of granting anticipatory bail. It is also argued that the drafting history of Articles 129(d) and 210 of the Constitution shows that courts martial are courts of judicature and subordinate to the high court which means, inter alia, that the high court has the power to release an accused on bail should the general court martial refuse to release him/her on bail.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"130 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":"123072153","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":"J. Visser","doi":"10.47348/SACJ/V33/I3A14","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A14","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"514 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":"116558106","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 procedure","authors":"P. D. Du Toit","doi":"10.47348/sacj/v34/i2a11","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a11","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"10 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":"133836852","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 will consider the defence of consent and whether its conception has changed over the years through jurisprudence. It will focus on a few areas that have seen developments in relation to the defence, namely, active euthanasia, sadomasochism, and sexual offences.
{"title":"Clarity, consistency, and community convictions: understanding the defence of consent in South African criminal law","authors":"Jameelah Omar","doi":"10.47348/sacj/v35/i2a1","DOIUrl":"https://doi.org/10.47348/sacj/v35/i2a1","url":null,"abstract":"This article will consider the defence of consent and whether its conception has changed over the years through jurisprudence. It will focus on a few areas that have seen developments in relation to the defence, namely, active euthanasia, sadomasochism, and sexual offences.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"49 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":"115714573","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 significant prevalence of psychiatric disorders in child offenders requires the justice system to provide direction in the treatment of these children. This submission considers whether the Children’s Act 38 of 2005, the Child Justice Act 78 of 2008, the Criminal Procedure Act 51 of 1977 and the child justice procedures uphold the best interests of child offenders with a mental illness or defects by juxtaposing South African legislation and child justice procedures with the best interests standard principle. The authors conclude that current legislation and legal procedures are not in the best interests of children with psychiatric disorders. Children with mental illness or defects are not adequately protected and they cannot participate equally in justice delivery processes. Furthermore, adequate consideration is not given to the affect of mental disorders or defects in decisions during child justice proceedings. It is recommended that the Child Justice Act be amended to include a section in which the rights of children with psychiatric disorders are protected and measures be put in place to address their psychosocial and developmental needs. Children with psychiatric disorders who are in conflict with the law should be classified as children in need of care and protection to break the causal nexus between psychiatric disorders and delinquency.
{"title":"Acting in the best interests of children with psychiatric disorders who conflict with the law: A critical analysis of South African legislation","authors":"L. C. Geoffrey, M. Schoeman","doi":"10.47348/sacj/v36/i1a4","DOIUrl":"https://doi.org/10.47348/sacj/v36/i1a4","url":null,"abstract":"The significant prevalence of psychiatric disorders in child offenders requires the justice system to provide direction in the treatment of these children. This submission considers whether the Children’s Act 38 of 2005, the Child Justice Act 78 of 2008, the Criminal Procedure Act 51 of 1977 and the child justice procedures uphold the best interests of child offenders with a mental illness or defects by juxtaposing South African legislation and child justice procedures with the best interests standard principle. The authors conclude that current legislation and legal procedures are not in the best interests of children with psychiatric disorders. Children with mental illness or defects are not adequately protected and they cannot participate equally in justice delivery processes. Furthermore, adequate consideration is not given to the affect of mental disorders or defects in decisions during child justice proceedings. It is recommended that the Child Justice Act be amended to include a section in which the rights of children with psychiatric disorders are protected and measures be put in place to address their psychosocial and developmental needs. Children with psychiatric disorders who are in conflict with the law should be classified as children in need of care and protection to break the causal nexus between psychiatric disorders and delinquency.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"77 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":"122111127","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}
Article 23(6) of the Constitution of Uganda (1995) provides that an arrested person is ‘entitled’ to apply to court for bail. However, it is silent on the issue of bail pending appeal. Bail pending appeal is provided for in the Magistrates Courts Act, the Judicature Act and the Criminal Procedure Code Act. Although the Supreme Court, the highest court in Uganda, provided criteria for granting bail pending appeal, some high court and Court of Appeal judges, who are bound by the decisions of the Supreme Court, have ignored these criteria. There are conflicting high court, Court of Appeal and Supreme Court judgments on the questions of whether art 23(6) is applicable to bail pending appeal and whether the right to be presumed innocent is applicable to a person who is applying for bail pending appeal. There are notable controversies in the rich jurisprudence of the Supreme Court on bail pending appeal. In October 2020, one of the justices of the Supreme Court held that the Supreme Court does not have the jurisdiction to grant bail pending appeal and that Rule 6(2)(a), which empowers the Supreme Court to grant bail pending appeal, is unconstitutional. In November 2020, another Supreme Court justice granted an applicant bail pending appeal without even referring to her colleague’s decision which held that the court did not have jurisdiction to grant bail pending appeal. This article examines the jurisprudence developed by the courts of Uganda on the subject. The discussion focuses on the following issues: courts with jurisdiction to grant bail pending appeal; the right to bail pending appeal; the presumption of innocence and bail pending appeal; and conditions for granting bail pending appeal.
{"title":"Bail pending appeal in Uganda","authors":"J. D. Mujuzi","doi":"10.47348/sacj/v34/i2a7","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a7","url":null,"abstract":"Article 23(6) of the Constitution of Uganda (1995) provides that an arrested person is ‘entitled’ to apply to court for bail. However, it is silent on the issue of bail pending appeal. Bail pending appeal is provided for in the Magistrates Courts Act, the Judicature Act and the Criminal Procedure Code Act. Although the Supreme Court, the highest court in Uganda, provided criteria for granting bail pending appeal, some high court and Court of Appeal judges, who are bound by the decisions of the Supreme Court, have ignored these criteria. There are conflicting high court, Court of Appeal and Supreme Court judgments on the questions of whether art 23(6) is applicable to bail pending appeal and whether the right to be presumed innocent is applicable to a person who is applying for bail pending appeal. There are notable controversies in the rich jurisprudence of the Supreme Court on bail pending appeal. In October 2020, one of the justices of the Supreme Court held that the Supreme Court does not have the jurisdiction to grant bail pending appeal and that Rule 6(2)(a), which empowers the Supreme Court to grant bail pending appeal, is unconstitutional. In November 2020, another Supreme Court justice granted an applicant bail pending appeal without even referring to her colleague’s decision which held that the court did not have jurisdiction to grant bail pending appeal. This article examines the jurisprudence developed by the courts of Uganda on the subject. The discussion focuses on the following issues: courts with jurisdiction to grant bail pending appeal; the right to bail pending appeal; the presumption of innocence and bail pending appeal; and conditions for granting bail pending appeal.","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":"123271512","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 paper sets out to demonstrate that the South African assessor system is not structured in a manner that holds the promise of adequately catering for the intended goal of promoting lay participation by community members in the adjudication of criminal cases. It identifies several challenges with the current assessor system in South Africa such as the unjustifiable differentiation between the assessor system in the magistrates’ courts and the high court which undermines this system as a form of lay participation. In the high court, assessors are required to have experience in the administration of justice or some other skill deemed useful in the case tried. This is not required of assessors in the magistrates’ courts. The paper also illustrates that there are no legislative guidelines on the appointment of assessors which leads to wide discretion being given to presiding officers in the appointment of assessors, which could potentially lead to the adoption of different approaches to similar cases. The key argument presented is that the discretion enjoyed by presiding officers when considering whether to use assessors should be limited by legislation. Most importantly, it is argued that that the legislature should consider reforming the assessor system with a view to establishing a system that will be equally applicable to both the high court and magistrates’ courts as the current differentiation seems unjustifiable.
{"title":"Lay participation in the South African criminal justice system: An assessment of the assessor system","authors":"B. Tshehla, MC Marumoagae","doi":"10.47348/sacj/v34/i2a8","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a8","url":null,"abstract":"This paper sets out to demonstrate that the South African assessor system is not structured in a manner that holds the promise of adequately catering for the intended goal of promoting lay participation by community members in the adjudication of criminal cases. It identifies several challenges with the current assessor system in South Africa such as the unjustifiable differentiation between the assessor system in the magistrates’ courts and the high court which undermines this system as a form of lay participation. In the high court, assessors are required to have experience in the administration of justice or some other skill deemed useful in the case tried. This is not required of assessors in the magistrates’ courts. The paper also illustrates that there are no legislative guidelines on the appointment of assessors which leads to wide discretion being given to presiding officers in the appointment of assessors, which could potentially lead to the adoption of different approaches to similar cases. The key argument presented is that the discretion enjoyed by presiding officers when considering whether to use assessors should be limited by legislation. Most importantly, it is argued that that the legislature should consider reforming the assessor system with a view to establishing a system that will be equally applicable to both the high court and magistrates’ courts as the current differentiation seems unjustifiable.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"77 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":"132240189","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}
There are numerous cases in which magistrates failed to properly administer the competency test or to admonish complainants in terms of s 164(1) of the Criminal Procedure Act 51 of 1977. In many of these cases, the magistrates nonetheless found the accused guilty based on the inadmissible evidence of the complainants. On review or appeal, however, the higher courts set the decisions of the magistrates aside because the magistrates’ decisions were based on the unreliable evidence of the complainants. While the rulings of the higher courts were legally sound, if not explained explicitly and thoroughly, they may appear unjust, clinical, harsh, inconsiderate, or even nonsensical. Such matters involve the fundamental rights of complainants and accused persons. They also result in severe consequences for complainants and accused persons, and they involve vulnerable groups such as children and mentally-ill individuals. It is therefore important that the higher courts reviewing the procedural errors of magistrates provide explicit and thorough explanations for their findings. To avoid perceptions that the decisions of the higher courts are unjust, the rulings of the courts should expressly acknowledge and address the unfortunate consequences suffered by both complainants and accused persons when a magistrate’s conviction is unsustainable because it was based on evidence that was not properly admitted. Acknowledging and addressing the injustices may help courts provide reasons for their decisions that go beyond merely stating that the complainants’ evidence is excluded because it is unreliable. Explicit reasons in such instances would go a long way in engendering and maintaining public confidence in the judicial system and enhancing public scrutiny of the current legal position.
{"title":"The importance of explicit reasons when overturning a conviction: Non-compliance with the competency test or the requirement to admonish complainants","authors":"Nondumiso Phenyane","doi":"10.47348/sacj/v35/i1a2","DOIUrl":"https://doi.org/10.47348/sacj/v35/i1a2","url":null,"abstract":"There are numerous cases in which magistrates failed to properly administer the competency test or to admonish complainants in terms of s 164(1) of the Criminal Procedure Act 51 of 1977. In many of these cases, the magistrates nonetheless found the accused guilty based on the inadmissible evidence of the complainants. On review or appeal, however, the higher courts set the decisions of the magistrates aside because the magistrates’ decisions were based on the unreliable evidence of the complainants. While the rulings of the higher courts were legally sound, if not explained explicitly and thoroughly, they may appear unjust, clinical, harsh, inconsiderate, or even nonsensical. Such matters involve the fundamental rights of complainants and accused persons. They also result in severe consequences for complainants and accused persons, and they involve vulnerable groups such as children and mentally-ill individuals. It is therefore important that the higher courts reviewing the procedural errors of magistrates provide explicit and thorough explanations for their findings. To avoid perceptions that the decisions of the higher courts are unjust, the rulings of the courts should expressly acknowledge and address the unfortunate consequences suffered by both complainants and accused persons when a magistrate’s conviction is unsustainable because it was based on evidence that was not properly admitted. Acknowledging and addressing the injustices may help courts provide reasons for their decisions that go beyond merely stating that the complainants’ evidence is excluded because it is unreliable. Explicit reasons in such instances would go a long way in engendering and maintaining public confidence in the judicial system and enhancing public scrutiny of the current legal position.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"95 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":"121640298","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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