Independent judicial research of forensic evidence in criminal trials – A South African perspective

by | Apr 15, 2022 | SACJ, SACJ V34 I3 2021

Independent judicial research of forensic evidence in criminal trials – A South African perspective

Author: Jo-Marí Visser

ISSN: 1996-2118
Affiliations: BSc BMedSc Hon (UFS) MSc Med Crim (UP) LLB, LLD (UFS), Senior lecturer, Department of Public Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 34 Issue 3, p. 415 – 441
https://doi.org/10.47348/SACJ/v34/i3a1

Abstract

As forensic scientific evidence becomes not only more advanced but progressively more important in criminal trials, so too does the pressure on presiding officers to accurately assess such evidence, not only for admissibility but also reliability. In the United States of America (USA), judges are mandated to act as gatekeepers of expert opinion and as such are tempted to engage in independent judicial research of science and medicine to accurately fulfil this gatekeeping duty. This temptation is intensified by the information explosion on the Internet and the vast array of available information, both legal and non-legal in nature. While courts are entitled to conduct legal research in deciding disputes, controversy and ambiguity exist on whether judicial research on facts should be allowed. In South Africa, the Constitutional Court in S v Van der Walt 2020 (2) SACR 371 (CC) focused on procedural fairness and held that independent judicial research violates accused persons’ right to challenge evidence in terms of s 35(3)(i) of the Constitution. But a blanket prohibition on this type of judicial research excludes many significant advantages that could potentially secure more accurate decisions. This article considers the legal positions on independent judicial research in the USA and South Africa, reviews the pros and cons of such research, and finds that a flexible approach might alleviate some dangers and exploit some advantages.

The Black Flame (part two): Snyman’s Criminal Law

by | Apr 15, 2022 | SACJ, SACJ V34 I3 2021

The Black Flame (part two): Snyman’s Criminal Law

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2118
Affiliations: LLB (Wits) LLM (UCT) PhD (Nottingham), Lecturer in Law, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 3, p. 442 – 460
https://doi.org/10.47348/SACJ/v34/i3a2

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.

The right to bail pending trial in Uganda

by | Apr 15, 2022 | SACJ, SACJ V34 I3 2021

The right to bail pending trial in Uganda

Author: Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of Law, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 34 Issue 3, p. 461 – 481
https://doi.org/10.47348/SACJ/v34/i3a3

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.