Are we there yet? A look at the remaining questions on physician-assisted suicide and physician-administered euthanasia

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

Are we there yet? A look at the remaining questions on physician-assisted suicide and physician-administered euthanasia

Author: Ntokozo Mnyandu

ISSN: 1996-2118
Affiliations: LLB LLM (UKZN); Lecturer, School of Law, University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 203 – 227
https://doi.org/10.47348/SACJ/v36/i2a2

Abstract

The research examines the common law to determine whether physician-assisted suicide and physician-administered euthanasia are lawful. In doing so, it establishes that these practices meet the definition of murder. The research then determines the underlying rationale for the common law and concludes that the prohibition against deliberate killing is the cornerstone of our law and social relationships. In order to determine whether the current position follows the logic of the common law, there is a discussion of how the prohibition against intentional killing has evolved over time. It is shown that the law has been at pains to protect life and that assisting another person to kill themselves for whatever reason has never been lawful under the various sources of our common law. Finally, it considers whether the current position is in line with the spirit of the Constitution. In doing so, regard is had to the values of ubuntu, human dignity and the advancement of human rights and freedoms. Although the research argues that the prohibition is consistent with the spirit of the Constitution, it recognises that these practices involve compelling policy considerations pointing in opposite directions. It may well be that current public policy considerations do not chart the path of common law development with sufficient clarity for the courts to intervene. The reason for this is there are few matters more sensitive and challenging than those which concern deliberate decisions to end life, either by providing persons with the means to commit suicide or by actively taking steps that end life on request. Therefore, the legislature may be the proper engine for legal development.

Cyber-warrant searches and the admissibility of seized smartphone data evidence at trial

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

Cyber-warrant searches and the admissibility of seized smartphone data evidence at trial

Author: Constantine Theophilopoulos

ISSN: 1996-2118
Affiliations: BSc LLB (Wits) LLM LLD (SA); Associate Professor, Interim Director and supervising attorney, Law Clinic, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 228 – 249
https://doi.org/10.47348/SACJ/v36/i2a3

Abstract

A validly issued cyber-warrant is a primary investigating tool in the seizure of smartphone data content and may be the only lawful method of obtaining relevant data-file evidence about the cyber-offence culpability of a co-perpetrator, accomplice, or accessory. A cyber-warrant for the seizure and search of a portable handheld smartphone, or minicomputer, must be drafted in a manner that is procedurally different from the warrant for the seizure of a desktop or laptop computer. This article critically examines the warrant procedures for accessing and searching relevant data files stored in a smartphone’s default storage mediums and downloaded applications. These technical procedures are described in the Cybercrimes Act, indirectly in the Electronic Communications and Transactions Act, the Criminal Procedure Act, and related Acts. This procedural analysis is based on a revised principle of smartphone cyber-intelligibility, and the application of the sub-principles of cyber-offence particularity and data-access specificity. The substantive issue of cyber-privacy and the procedural issue of chain-of-data evidence custody is briefly examined.

Psychoanalytic psychology, sleep medicine, and the law: Scientifically reviewing Oscar Pistorius’ culpable homicide/ murder conviction

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

Psychoanalytic psychology, sleep medicine, and the law: Scientifically reviewing Oscar Pistorius’ culpable homicide/murder conviction

Author: Brent Willock

ISSN: 1996-2118
Affiliations: BSc (McGill) PhD (Michigan); Faculty member Adelphi University’s Gordon F. Derner School of Psychology
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 250 – 281
https://doi.org/10.47348/SACJ/v36/i2a4

Abstract

In parasomnias (sleep disorders), parts of the brain are alert, functioning well, but other regions are not awake, not functioning. These mixed sleep/wake states compromise mental processes in ways that can be surprising, and sometimes dangerous to self and/or others. Possible parasomnia should be considered in relation to all violent, perplexing events that occur after individuals fall asleep. Increased familiarity with the scientific study of dreaming and sleep disorders augments mental health and legal practitioners’ capacity to comprehend and assist. Expert testimony from these scientific fields can shift judicial focus from inappropriate punishment toward treatment and prevention, bringing enlightened justice, understanding, and relief to all parties. This article re-examines the controversial case of Olympic athlete, Oscar Pistorius, who killed his girlfriend, Reeva Steenkamp, during an episode of sudden arousal from sleep. Both the bail magistrate and the judge underscored major elements that made no sense in Pistorius’ narrative. When these crucial anomalies are approached with knowledge of dreaming and parasomnia, they become comprehensible, meaningful, and potentially transformative with respect to judicial outcome. Invaluable insights from these scientific fields were not considered during Pistorius’ trial. If they had been contemplated and found credible, the accused might have been found not criminally responsible. This possible miscarriage of justice might be reversed via appeal based upon these scientific principles.
Sleep medicine and psychoanalytic psychology have made major judicial contributions. These disciplines are indispensable for understanding perplexing legal cases. Without expert opinion from these scientific fields, miscarriages of justice may occur. Familiarity with these research findings is crucial for legal and mental health professionals.2 This article reviews a well-known, controversial case through these empirical lenses. The strong possibility that parasomnia (sleep disorder) severely impaired this defendant’s important cognitive processing capacity is presented. In such cases, non-pathological criminal incapacity (therefore acquittal) must be seriously considered in courts’ efforts to achieve optimal justice.

State compulsion of smartphone security features and the privilege against self-incrimination

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

State compulsion of smartphone security features and the privilege against self-incrimination

Author: Constantine Theophilopoulos

ISSN: 1996-2118
Affiliations: BSc LLB (Wits) LLM LLD (SA); Associate Professor, Interim Director and supervising attorney, Law Clinic, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 282 – 303
https://doi.org/10.47348/SACJ/v36/i2a5

Abstract

There is currently a lacuna in statutory and case law about the legal nexus between smartphone technology in the form of password/code or biometric-locked smartphone security features and the privilege against self-incrimination. This paper examines whether a recipient of a cyber-warrant, subpoena, or other compelling order, may invoke the privilege against self-incrimination in the face of a state order compelling the production of a security feature in order to unlock a smartphone and forensically access stored incriminating data files as admissible relevant evidence at trial. This paper examines the legal nexus by critical reference to relevant South African legislation, comparative international law, the Fifth Amendment privilege, and the foregone conclusion doctrine as described by the USA Supreme Court in Fisher v United States, Hubbell v United States and other federal courts.

Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

NOTE

Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce

Author: Bradley S Smith

ISSN: 1996-2177
Affiliations: Senior Lecturer: Research, The Independent Institute of Education’s Varsity College; Extraordinary Professor of Private Law, University of the Free State
Source: South African Law Journal, Volume 140 Issue 4, p. 697-714
https://doi.org/10.47348/SALJ/v140/i4a1

Abstract

In this note, I argue that PAF v SCF 2022 (6) SA 162 (SCA) is a groundbreaking judgment for curbing the abuse of the trust form by spouses who are married out of community of property and who engage in unscrupulous ‘divorce planning’ aimed at manipulating their personal estate values for the purposes of dividing matrimonial property at divorce. PAF not only removes several uncertainties regarding our courts’ ability to pierce the veneer of an abused trust but also broadens our conventional understanding of what trust-form abuse entails in the divorce setting, particularly by virtue of its engagement with the SCA’s earlier (prescient) judgment in Badenhorst v Badenhorst 2006 (2) SA 255 (SCA). In the process, I argue that there is a need to reconsider the test formulated in REM v VM 2017 (3) SA 371 (SCA) for taking the asset value of an alter-ego trust into account for accrual claims at divorce. I further assert that the new paradigm PAF ushers in requires formulating a consolidated test that takes into account this reconsideration, as well as the novel factual matrix in PAF. I conclude that this consolidated test is not only capable of being applied in the context of accrual liability, but also where a spouse is eligible to seek a redistribution order in terms of s 7 of the Divorce Act.

Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

NOTE

Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN

Author: Delano Cole van der Linde

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 4, p. 715-732
https://doi.org/10.47348/SALJ/v140/i4a2

Abstract

The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.