The unfit accused in the South African criminal justice system: From automatic detention to unconditional release

by | Oct 12, 2019 | SACJ, SACJ V31 I1 2018

The unfit accused in the South African criminal justice system: From automatic detention to unconditional release

Authors Letitia Pienaar

ISSN: 1996-2118
Affiliations: Senior lecturer, Department of Criminal and Procedural Law, Unisa; Attorney of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 31 Issue 1, p. 58 – 83

Abstract

Section 77 of the Criminal Procedure Act 51 of 1977 sets out the orders that a court can make after fnding an accused unft to stand trial on account of his mental illness or intellectual disability. All the orders result in detention of the unft accused in prison or a psychiatric institution (depending on the nature of the charges against the accused) in terms of the Mental Health Care Act 17 of 2002. The court could not consider the treatability of the accused’s condition or any individual circumstances of the accused before ordering such detention. Section 77 was recently amended by the Criminal Procedure Amendment Act 4 of 2017. The Amendment Act resulted from the Constitutional court’s judgment in De Vos NO v Minister of Justice and Constitutional Development 2015 (2) SACR 217 (CC) where the court found, inter alia, that such limited orders deprive the court of its discretion to craft an order that is suitable for the particular unft accused. The court ruled on the constitutionality of detaining an unft accused in prison or a psychiatric institution and found some provisions of s 77 that facilitates such detention, unconstitutional. The Amendment Act brings s 77 in line with the Constitution. This contribution explores the orders available to the court before and after the amendment of s 77 and conveys the crux of the court’s judgment in the De Vos matter pertaining to the unconstitutionality of certain provisions of s 77. It concludes that the amendment bolsters, in particular, the unft accused’s right to freedom and security of the person as the court may now order the conditional or unconditional release of the unft accused where appropriate.

Corruption in South Africa: The demise of a nation? New and improved strategies to combat corruption

by | Oct 12, 2019 | SACJ, SACJ V31 I1 2018

Corruption in South Africa: The demise of a nation? New and improved strategies to combat corruption

Authors Trevor Budhram, Nicolaas Geldenhuys

ISSN: 1996-2118
Affiliations: Associate Professor, Department of Police Practice, School of Criminal Justice, Unisa; Unisa
Source: South African Journal of Criminal Justice, Volume 31 Issue 1, p. 26 – 57

Abstract

There is little doubt about the widespread incidence of corruption in South Africa. Its effects are manifold and can culminate in state capture, where a government’s decision-making is influenced by a corrupt, politically connected lite, and political and statutory powers misused to maintain a symbiosis of self-enrichment. Corruption undermines democracy and the rule of law, leads to human rights violations, distorts markets, and facilitates and finances organised crime and terrorist activities. It is an obstacle to sustainable economic, political and social development, leads to an increase in the cost of doing business, discouraging investment and resulting in a waste of public resources. It can compromise the fabric and integrity of a country’s criminal justice system, as it ultimately weakens law enforcement efforts. Over the past two decades there have been a number of government initiatives aimed at combating corruption. However, none of these seem effective to rid South Africa of the plague of corruption, especially serious corruption at high levels in government. This paper addresses old and existing anti-corruption strategies and proposes new ones which, the authors believe, should serve to consolidate and strengthen existing anti-corruption efforts across all sectors. The authors argue for a renewed holistic anti-corruption approach, jointly driven by government and the private sector, an overhaul of the status quo and the roll-out of a new, effective anti-corruption tapestry.

Revisiting admissibility: A review of the challenges in judicial evaluation of expert scientific evidence

by | Oct 12, 2019 | SACJ, SACJ V31 I1 2018

Revisiting admissibility: A review of the challenges in judicial evaluation of expert scientific evidence

Authors Jo-Marí Visser, Ulrich Kruger

ISSN: 1996-2118
Affiliations: Senior Lecturer in Law, University of the Free State; Candidate Attorney, Law Society of the Northern Provinces
Source: South African Journal of Criminal Justice, Volume 31 Issue 1, p. 1 – 25

Abstract

Research has shown that criminal courts in common law jurisdictions generally take a liberal approach to the admission of incriminating expert evidence and leave considerations of reliability and methodological validity until the evaluation stage. This article investigates the ability of presiding offcers to accurately evaluate expert evidence by describing the factors that complicate this task. These factors include: the complex and technical nature of expert evidence and the specialisation required to understand it, as well as bias at different levels of trial. The article also reviews some strategies meant to assist presiding offcers in accurately evaluating often highly technical evidence, from adversarial safeguards to the development of strict admissibility rules. The article confrms that judges in bench trials are in as poor a position as laypersons on jury panels to accurately evaluate expert evidence. For this reason, South Africa should adopt research and policy strategies to encourage a more analytical approach during the admissibility stage in criminal trials. The aim of such an approach must be to conceptualise and apply effective rules to help judges identify and exclude unreliable expert evidence, and to invite prosecutors and legal representatives to partake in the process of rooting out unreliable evidence.