The legal implications of S v Ndhlovu and Litako v S on the South African law of hearsay evidence: A critical overview

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

The legal implications of S v Ndhlovu and Litako v S on the South African law of hearsay evidence: A critical overview

Authors ‘Mampolokeng’ Mathuso Mary-Elizabeth Monyakane, Steven Moswetsi Monye

ISSN: 1996-2118
Affiliations: Senior Lecturer, Law of Evidence: Department of Criminal and Procedural Law, UNISA, and Advocate of the High Court of South Africa; Lecturer, Law of Evidence: Department of Criminal and Procedural Law, UNISA
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 308 – 332

Abstract

The change in course on the admission of extra-curial statements in S v Ndhlovu in 2000 caused concern about the correct way admissions of coaccused are to be admitted by the courts. Whilst many writers believed that s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 accommodated admissions of co-accused against another, the case of Litako v S pointed out the anomalies that mitigated against that position. This article supports the view in Litako v S that corrected the earlier position of the court. It is the argument in this article that courts should not make out cases for the state and that it is the duty of the prosecution to establish a case to answer for each accused person, whether co-accused or not. It is further argued that the Law of Evidence Amendment Act never repealed the common-law principles regarding admissions, and that, if that were the case, the legislature should have expressly done so. Furthermore, it is argued that the approach in S v Ndhlovu opened too wide s 3 of the Law of Evidence Amendment Act.

Tender irregularities and corruption in South Africa: The need to revisit issues of evidence

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Tender irregularities and corruption in South Africa: The need to revisit issues of evidence

Authors Prenisha Sewpersadh, John Cantius Mubangizi

ISSN: 1996-2118
Affiliations: None; Professor, Deputy Vice-Chancellor and Head of the College of Law and Management Studies, University of KwaZulu-Nata
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 292 – 307

Abstract

While South African courts have frequently adjudicated matters involving tender irregularities, few findings of corruption have resulted from such cases. The courts appear constrained by strict rules pertaining to admission of evidence, which may result in their refusal to admit evidence of alleged corruption in cases involving tender appeals or reviews. This is notwithstanding the existence of judicial discretion bestowed upon courts through statute. Further, the provisions of the Prevention and Combating of Corrupt Activities Act (PCCAA) could be reformed to ease evidentiary burdens relating to the prosecution of corruption offences. Corruption often involves the exchange of undue gratification, and this may result in the accumulation of illicit wealth. The creation of an offence of possession of unexplained wealth is encouraged by international law, and may be credibly justified taking into account the nature of tender corruption. The creation of such an offence within the PCCAA may assist the prosecution from an evidentiary perspective — in that the prosecution would not be expected to prove that the wealth was obtained unlawfully. Cogent reasons exist for the appropriate reform of the PCCAA with respect to evidentiary issues pertaining to tender corruption. The nature of tender corruption, its prevalence in South Africa, and the difficulties associated with gathering evidence of corruption, justify such assistance from the legislature.

Substantive equality, restorative justice and the sentencing of rape offenders

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Substantive equality, restorative justice and the sentencing of rape offenders

Authors Amanda Spies

ISSN: 1996-2118
Affiliations: Associate Professor, Department of Public, Constitutional and International Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 273 – 291

Abstract

This article explores the concept of substantive equality and how, as a constitutional value, it requires the consideration and application of restorative justice principles in the sentencing of rape offenders. With sexual violence being a difficult and controversial area in which to apply restorative justice principles, there is a need to understand the necessity for its application and analyse how it has been applied by South African courts. The argument is made that restorative justice should be seen as a method that gives effect to substantive equality values, allowing for a victim’s needs and context (including that of the offender) to be taken into account in handing down a just sentence.

A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

Authors D Erasmus, NC Ndzengu

ISSN: 1996-2118
Affiliations: Associate Professor, Department of Criminal and Procedural Law, Faculty of Law, Nelson Mandela Metropolitan University, Port Elizabeth, South Africa and Attorney of the High Court of South Africa; Senior Deputy Director of Public Prosecutions: Asset Forfeiture Unit (AFU), Port Elizabeth and Attorney of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 247 – 272

Abstract

The Prevention of Organised Crime Act 121 of 1998 provides for both criminal and civil forfeiture regimes. In the case of criminal forfeiture, the confiscation machinery provided for may only be invoked when the ‘defendant’ is convicted of an offence. Civil forfeiture provides for forfeiture of the proceeds of and instrumentalities used in crime, but this form of forfeiture is not conviction-based and may even be invoked when there is no prosecution. The National Director of Public Prosecutions (NDPP) via appointed legal practitioners chooses in each case which asset forfeiture regime to invoke, depending on the facts of the case. The recent judgment of Ntsoko v National Director of Public Prosecutions deals with a review of the decision of the NDPP to resort to civil forfeiture, as opposed to criminal forfeiture, and an attempt to constrain the exercise of these powers in this regard. The court held that the decision of the NDPP to invoke civil, instead of criminal forfeiture, is reviewable as a consequence of the principle of legality. In this contribution it will be argued that the court in fact introduced and extended the application of the principle of legality into asset forfeiture jurisprudence. The extension of the principle of legality was applied as a constitutional imperative or an interpretive tool to review the decision of the NDPP.

Corporate accountability in South Africa: Sharpening the role of criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Corporate accountability in South Africa: Sharpening the role of criminal law

Authors John Paul Ongeso

ISSN: 1996-2118
Affiliations: Post-doctoral Research Fellow at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg, South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 225 – 246

Abstract

South Africa’s Criminal Procedure Act 51 of 1977 adopts a derivative model of establishing corporate liability. This article argues that this model has a number of limitations that render it ineffective for corporate accountability for serious human rights violations and crimes. It considers an alternative model of non-derivative criminal liability and discusses how this may apply to the South African context through its inclusion in the Act. This article also draws from legislative schemes in the United Kingdom and Australia that have incorporated non-derivative models for corporate criminal liability.