scholarly journals The Danger for an Underestimation of Necessary Precautions for the Admissibility of Admissions in Section 219A of the South African Criminal Procedure Act 51 of 1977

2019 ◽  
Vol 31 (1) ◽  
pp. 81-120
Author(s):  
’Mampolokeng ’Mathuso Mary-Elizabet Monyakane
Keyword(s):  
South African ◽  
Criminal Procedure ◽  
Prima Facie ◽  
The South ◽  
Simple View ◽  
The Law ◽  
Criminal Matters ◽  
Law Of Evidence

AbstractThe Prima facie view regarding the admissibility of admissions, as evidence, in criminal matters is that, to admit admissions as evidence, the court requires a single consideration as to whether the admission was made freely and voluntarily. Without too much ado, the simple view to this understanding presupposes that admission of an admission as evidence against its maker is of a lesser danger compared to the admission of a confession. The admissibility of confessions against their makers does not come as easily as that of admissions. There are many prescribed requirements to satisfy before confessions are admitted as evidence. This comparison has led to a questionable conclusion that requirements for the admissibility of admissions are of a less complexity equated to the requirements for the admission of confessions. This paper answers the question whether an inference that the requirements for the admissibility of admissions are of a less complexity compared to the requirements for the admission of confessions is rational? It equates this approach to the now done away with commonwealth states rigid differentiation perspective. In the 1800s the commonwealth states, especially those vowing on the Wigmorian perspective on the law of evidence, developed from a rigid interpretation of confessions and admissions and adopted a relaxed and wide definitions of the word, “confession.” To this extent there was a relaxed divide between confessions and admissions hence their common classification and application of similar cautionary rules. The article recounts admissibility requirement in section 219A of the South African Criminal Procedure Act 51 of 1977 (CPA) (Hereinafter CPA). It then analyses Section 219A of the CPA requirement in the light of the rationale encompassing precautions for the admission of confessions in terms of 217(1) of the CPA. It exposes the similarities of potential prejudices where confessions and admissions are admitted as evidence. It reckons that by the adherence to this rigid differentiation perspectives of confessions and admissions which used to be the practice in the commonwealth prior the 1800s developments, South African law of evidence remains prejudicial to accused persons. To do away with these prejudices this article, recommends that section 219A be amended to include additional admissibility requirements in section 217(1). In effect it recommends the merging of sections 217(1) and 219A of the CPA.

scholarly journals HOW MUCH MIGHT IS RIGHT? Application of Section 49 of the Criminal Procedure Act

2006 ◽  
Author(s):  
Traggy Maepa
Keyword(s):  
South African ◽  
Use Of Force ◽  
Criminal Procedure ◽  
The State ◽  
Constitutional Court ◽  
Court Ruling ◽  
The South ◽  
Standards Of Practice ◽  
The Law

In 1998 the South African parliament voted on the issue of the use of force when effecting an arrest, in order to bring standards of practice in line with the rest of the democratic world. Four years later the law still has not been signed by the state president, largely due to protests by the ministers of Justice and Constitutional Affairs and Safety and Security. The issue has been before the Constitutional Court and in May 2002, this court did what the executive was afraid to do, striking down parts of the Section and clarifying “reasonable force”. But the court ruling still did not go as far as the legislation in protecting citizens.

A Critique of Search and Seizure in Terms of a Search Warrant in South African Criminal Procedure: A Comparative Analysis

2019 ◽  
Vol 27 (4) ◽  
pp. 497-521
Author(s):  
Vinesh Basdeo
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Primary Objective ◽  
Search And Seizure ◽  
The South ◽  
Judicial Scrutiny ◽  
Search Warrant

The primary objective of this article is to determine whether the search and seizure measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the ‘spirit, purport and object’ of the Constitution. This article analyses ‘search and seizure’ in the South African criminal justice system as is made possible by Chapter 2 of the Criminal Procedure Act 51 of 1977, which provides for search warrants, the entering of premises, and the seizure, of property connected with offences. It determines whether the required judicial scrutiny provides a real control upon the exercise of search and seizure powers. Search and seizure legal principles extracted from American criminal procedure will also be analysed for comparative purposes.

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

Rhetoric and Law

2015 ◽  
pp. 396-408
Author(s):  
Lorna Hutson
Keyword(s):  
Sixteenth Century ◽  
Common Law ◽  
Criminal Procedure ◽  
Legal Development ◽  
Major Development ◽  
The Law ◽  
Civil Cases ◽  
Reasons For Decisions ◽  
Law Of Evidence

This chapter reexamines the older scholarly consensus that humanist rhetoric had no great effect on legal development in sixteenth-century England. It argues that the humanist emphasis on topical invention led to a blurring of distinctions between rhetoric and dialectic, and that key to both were artificial proofs derived from “circumstances,” “accidents,” and “predicaments.” It shows first how circumstances, employed in criminal procedure, helped develop the law of evidence and then goes on to show how this terminology was used to shape the “reasons” for decisions in highly significant civil cases such as Calvin’s Case (1608). If a major development of English common law in this period is its new emphasis on the reasoned decisions of courts as a source of law, this article proposes that it was topical invention that shaped the “reasons” and, hence, the law.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

scholarly journals Unpacking the Law and Practice Relating to Parole in South Africa

2017 ◽  
Vol 14 (5) ◽  
pp. 204
Author(s):  
Jamil D Mujuz
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Early Release ◽  
Correctional Services ◽  
The Law ◽  
Parole System

The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.

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