Developing Common Law to Expand the Meaning of the Right to a Fair Trial in South Africa: The Accused's Right to Be Heard before the Court Imposes the Sentence

2013 ◽  
Vol 42 (2) ◽  
pp. 137-150
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
South Africa ◽  
Common Law ◽  
Fair Trial ◽  
The Right

scholarly journals An analysis of spousal competence and non-compellability in terms of section 198 of the Criminal Procedure Act

De Jure ◽  
2021 ◽  
Vol 54 (1) ◽  
pp. 1-15
Author(s):  
Melissa Lazarus ◽  
Dr Franaaz Khan
Keyword(s):  
South Africa ◽  
South African ◽  
Media Coverage ◽  
Common Law ◽  
Criminal Procedure ◽  
Biblical Principles ◽  
The Right

Marital privilege is founded on the biblical principles of the union between man and wife. Thus wives were not competent or compellable witnesses against their husbands. Over the years the privilege developed in English common law. South Africa codified the privilege through Section 198 of the Criminal Procedure Act 51 of 1977 which states that spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged appears in the categories listed in Section 195 of the Act. There are many criticisms against affording a privilege to a particular class of persons - notably that the non-compellability exception given to spouses is unconstitutional as it violates the right to equality in terms of section 9 of the Constitution. Recent media coverage at the Zondo Commission highlighted this conundrum when the ex-minister's spouse was asked to testify. This article examines the merits of the unconstitutionality argument and concludes that spousal non-compellability fails to withstand the test against unfair discrimination on the basis of marital privilege. Finally, recommendations are proposed in this regard which examine the nature and evolution of spousal competence and non-compellability in South African law.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2021 ◽  
pp. 132-162
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

scholarly journals The right to a fair trial: conceptual rethinking in an era of quarantine restrictions

2021 ◽  
Vol 10 (38) ◽  
pp. 168-177
Author(s):  
Boris Perezhniak ◽  
Dariia Balobanova ◽  
Liliia Timofieieva ◽  
Olena Tavlui ◽  
Yuliia Poliuk
Keyword(s):  
International Law ◽  
Social Relations ◽  
Common Law ◽  
Fair Trial ◽  
Legal Method ◽  
The Social ◽  
Cybernetic Method ◽  
The Subject ◽  
The Right

One of the most important places among the universally recognized rights is the right to a fair trial. The essence of this right is that any violated right can be restored through a particular procedure. In the absence of an effective method for the protection of rights and interests, the rights and freedoms recognized and enshrined in law are only declarative provisions. Given the significant role of the right to a fair trial and changes in its provision under quarantine restrictions, it is necessary to analyze the content of this right, highlight principal requirements and problematic aspects of implementation given the current conditions of social relations. The purpose of the work is to analyze the content of the right to a fair trial. The subject of the study is the social relations that arise, change, and terminate during the exercise of the right to a fair trial. The research methodology includes such methods as a statistical-mathematical method, method of social-legal experiment, cybernetic method, comparative-legal method, formal-legal method, logical-legal method, and method of alternatives. The study will analyze the content of the right to a fair trial as international law and national law, its impact and interaction with the national legal system of Ukraine, which includes theoretical, applied, and common law aspects and conceptual rethinking in an era of quarantine restrictions.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2020 ◽  
pp. 132-160
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2019 ◽  
pp. 128-156
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2018 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

Defense Rights, Duties, Norms, and Practices in Common Law and Civil Law Jurisdictions

2019 ◽  
pp. 188-208
Author(s):  
Ed Cape
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Civil Law ◽  
Fair Trial ◽  
International Norms ◽  
National Identities ◽  
Normative Standards ◽  
The Right ◽  
Procedural Rights

This chapter compares defense rights, duties, norms, and practices in common law and civil law jurisdictions. It first provides an overview of international norms regarding defense rights, focusing on the elements of the right to fair trial that are substantially reflected in international normative instruments. It then examines the “role” of the suspects and the accused in common law and civil law systems, along with the range of defense rights, at both the investigative and trial stages, and how they may be articulated, using the European Union’s procedural rights program as an exemplar. It also highlights the challenges to implementation across both adversarial and inquisitorial jurisdictions. Finally, it asks whether normative standards may be meaningfully applied across jurisdictions in the context of different procedural traditions, and the significance of criminal justice processes in the development and confirmation of national identities.

scholarly journals The Relationship between the Constitutional Right to Silence and Confessions in Nigeria

2014 ◽  
Vol 6 (2-3) ◽  
pp. 189-211
Author(s):  
Esa O. Onoja
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
Criminal Cases ◽  
Legal Rules ◽  
Right To Silence ◽  
The Common ◽  
Constitutional Right ◽  
The Right ◽  
The Relationship

Abstract The extraction of confessions from suspects under torture by security agents is a notorious fact in Nigeria. Ironically, the Constitution of the country guarantees a right to silence, but courts in Nigeria predicate the admissibility of confessions on the common law-based Judges Rules and Evidence Act 2011 without linking it to the constitutionally guaranteed right to silence. This article reviews the legal rules on the admissibility of confessions in Nigeria and contends that without attaching constitutional flavour to the admissibility of confessions, the legislature and the courts in Nigeria unwittingly water the ground for the systemic extraction of confession from suspects in custody in Nigeria. The article suggests that the courts in the country consider the implication of the guarantee of the right to silence in the country’s constitution in the determination of the admissibility of confessions to promote fair trial in criminal cases in the country.

scholarly journals WHICH STRUCTURES DOES THE HOUSEBREAKING CRIME PROTECT?

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Shannon Hoctor
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Criminal Code ◽  
The South ◽  
Canadian Criminal Code ◽  
Definition Of ◽  
The Right ◽  
Movable Structure ◽  
Special Protection

The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) “housebreaking with the intent to commit a crime”) are inexorably bound up with the need to protect the dweller in his or her abode. From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law. This concern is reflected by the fact that common-law jurisdictions have typically classified housebreaking as a crime against the habitation, which implies the right to “feel secure in one’s own home”. With the broadening of the ambit of the crime (variously referred to as burglary or breaking and entering in other jurisdictions) beyond merely protecting habitation, differing approaches have been taken in defining the nature of the premises that can be broken into. Thus in English law, to be a “building” within the definition of the crime (in terms of s 9(1) of the Theft Act, 1968) the structure is required to have some degree of permanence and an inhabited vehicle or vessel is specifically included in theterm “building” (s 9(4) of the Theft Act, 1968). In Canada, breaking and entering (in terms of s 348 of the Canadian Criminal Code, RSC 1985, c.C-46) include, within the understanding of a “structure” which can be broken into and entered, spaces enclosed by a fence, but not unenclosed spaces. The position in South Africa has not been definitively resolved, although it can at least be accepted that it is incorrect to state that the breaking into and entering can only be in respect of an immovable structure, and cannot be committed by breaking into a movable structure. What then is the South African position regarding the nature of a “premises” which is protected by the housebreaking crime?

Preserving the Right to a Fair Trial: Examining the Prejudicial Value of Auditory Evidence

2012 ◽  
Author(s):  
Emily R. Edwards ◽  
Karen E. Mottarella ◽  
Shannon N. Whitten
Keyword(s):  
Fair Trial ◽  
The Right
Sign in / Sign up

Export Citation Format

Share Document