scholarly journals WARRANTLESS SEARCHES AND AWARDS FOR DAMAGES IN LIGHT OF THE JUDGMENT IN Shashape v The Minister of Police Case No.: 1566/2018

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Delano Cole van der Linde
Keyword(s):  
Criminal Procedure ◽  
Search And Seizure ◽  
Private Spaces ◽  
Police Official ◽  
The Law ◽  
Substantive Law ◽  
Unlawful Conduct ◽  
Police Functions

The law of criminal procedure is “double functional” in that it not only dictates the proper procedure for the execution of police functions but also serves as a ground of justification in substantive law against otherwise unlawful conduct. Nevertheless, personal liberties, even in the pursuit of justice in a country overrun by crime, cannot be sacrificed indiscriminately simply to further the diligent investigation of crime.An example of personal liberties being sacrificed in favour of the pursuit of justice is the search and seizure of private spaces of individuals. Search and seizure may be effected both with and without a warrant and is regulated by the Criminal Procedure Act 51 of 1977 (CPA). However, where a police official acts outside of this legislative matrix, his or her conduct is not regarded as lawful; he or she may not rely on official capacity as a ground of justification against an (unlawful) search. In such instances, the Minister of Police may be vicariously liable in delict owing to the unlawful conduct of police officials. Such cases are relatively rare.This contribution will focus on two specific aspects – namely, search and seizure conducted without a warrant, and subsequent awards for damages based on unlawful, warrantless searches. The recent judgment in Shashape v The Minister of Police (WHC (unreported) 2020-04-30 Case no 1566/2018 (Shashape)) is discussed against this backdrop.

A critique of search and seizure in terms of a search warrant in South African criminal procedure

2017 ◽  
Vol 30 (1) ◽  
pp. 153-175
Author(s):  
Vinesh Basdeo
Keyword(s):  
Law Enforcement ◽  
South African ◽  
Criminal Procedure ◽  
Search And Seizure ◽  
Initial Contact ◽  
Personal Privacy ◽  
African Experience ◽  
Law Enforcement Officials ◽  
The Law ◽  
Search Warrant

The requirements and safeguards for a valid search warrant in South African criminal procedure are critically analysed in this article. The existence of safeguards to regulate the way in which law enforcement officials may enter the private sphere of ordinary citizens is one of the features that distinguish a constitutional democracy from a police state. South African experience has been notoriously varied in this regard. Many generations of systemised and egregious violations of personal privacy established norms for citizens that seeped generally into the public administration and promoted amongst a great many officials habits and practices inconsistent with the standard of conduct now required by the Bill of Rights. Today, law enforcement officials must be highly skilled in the use of investigative tools and extremely knowledgeable about the intricacies of the law. One error in judgment during initial contact with a suspect can, and often does, impede the investigation and could affect the fairness of the trial. For example, an illegal search may so contaminate evidence obtained that it will not be admitted as evidence in court. In addition to losing evidence for prosecution purposes, failing to comply with constitutional mandates often leads to liability on the part of the law enforcement official.

The Law of Pre-Trial Criminal Procedure in Namibia

2014 ◽  
Author(s):  
Clever Mapaure ◽  
Ndjodi M. L. Ndeunyema ◽  
Pilisano H. Masake ◽  
Festus Weyulu ◽  
Loide A. Shaparara
Keyword(s):  
Criminal Procedure ◽  
The Law

The Common Law in Colonial America

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
New York ◽  
Colonial America ◽  
Main Theme ◽  
Revolutionary Movement ◽  
American Colonies ◽  
American Law ◽  
Fourth Volume ◽  
The Law ◽  
Substantive Law ◽  
The Revolution

This volume begins where volumes 2 and 3 ended. The main theme of the four-volume project is that the law of America’s thirteen colonies differed profoundly when they first were founded, but had developed into a common American law by the time of the Revolution. This fourth volume focuses on what was common to the law of Britain’s thirteen North American colonies in the mid-eighteenth century, although it also takes important differences into account. The first five chapters examine procedural and substantive law in colonies and conclude that, except in North Carolina and northern New York, the legal system functioned effectively in the interests both of Great Britain and of colonial localities. The next three chapters examine changes in law and the constitution beginning with the Zenger case in 1735—changes that ultimately culminated in independence. These chapters show how lawyers became leading figures in what gradually became a revolutionary movement. It also shows how lawyers used legal and constitutional ideology in the interests, sometimes of an economic character, of their clients. The book thereby engages prior scholarship, especially that of Bernard Bailyn and John Phillip Reid, to show how ideas and constitutional values possessed independent causal significance in leading up to the Revolution but also served to protect institutional structures and socioeconomic interests that likewise possessed causal significance.

Authority by Aggregation and Abstraction

2017 ◽  
Author(s):  
Rebecca Skreslet Hernandez
Keyword(s):  
Pragmatic Theory ◽  
Legal Thought ◽  
Universal Principles ◽  
Legal Literature ◽  
Religious Learning ◽  
The Law ◽  
Substantive Law ◽  
Lasting Influence

In addition to his views on ijtihād and tajdīd, al-Suyūṭī’s lasting influence in Islamic legal thought lies in the area of legal precepts (pithy maxims or questions that sum up areas of the law). Al-Suyūṭī’s al-Ashbāh wa-l-naẓāʾir stands as a core work in this genre of legal literature and is still a popular textbook for students at Egypt’s premier institution of religious learning, al-Azhar. Using the pragmatic theory of Grice and others, I argue that legal precepts fulfill a number of key discursive functions for the jurist. It is with al-Suyūṭī’s Ashbāh that he is most successful in asserting his authority as an aggregator, abstractor, and framer of the law. The power of framing lies in the ability to distill key universal principles from the vast corpus of Islamic substantive law and to assert that these principles represent the essence and spirit of the Sharīʿa.

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.

The Judicial Council of the State of New York; Its Objectives, Methods, and Accomnlishments. I

1941 ◽  
Vol 35 (5) ◽  
pp. 933-940
Author(s):  
Leonard S. Saxe
Keyword(s):  
New York ◽  
New York State ◽  
The State ◽  
York State ◽  
The Third ◽  
The Law ◽  
Substantive Law

The Judicial Council and Its Objectives. My assignment is to implement Professor Sunderland's brilliant primer on judicial councils by a more specific presentation utilizing the experiences of the New York State Judicial Council. Of the three elements that enter into a consideration of the judicial branch of government, the first—the substantive law, the law of rights and duties—is not within the province of the judicial council either in New York or elsewhere. The second element—the machinery of justice—is the principal field of the judicial council. If the council does its work well in that field, attention cannot fail to be focused upon the third and most important element—also part of a judicial council's problems—the judicial personnel.

The Law of International Criminal Procedure and Domestic War Crimes Trials

2006 ◽  
Vol 6 (4) ◽  
pp. 605-635 ◽  
Author(s):  
Göran Sluiter
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Procedure ◽  
War Crimes ◽  
Specific Context ◽  
National Courts ◽  
International Criminal Tribunals ◽  
War Crimes Trials ◽  
The Law ◽  
Do So

AbstractThis article deals with the question of possible effect of the law of international criminal procedure for domestic war crimes trials. With the increasing number of national prosecutions for war crimes this question will gain in relevance.The article starts with an exploration of the origin and development of the law of international criminal procedure, to reach the conclusion that because of the lack of a strong foundation it is difficult to discern firmly established rules in this field. Next, two areas are examined where the law of international criminal procedure is capable of producing effect for national trials: human rights and rules that have developed in the specific context of war crimes prosecutions.Whether rules of international criminal procedure are formally effective in the domestic legal order remains to be seen. There is no clear obligation under international law to do so. Furthermore, the law of international criminal procedure may be difficult to harmonise with domestic inquisitorial systems.In spite of these difficulties, the article concludes that national courts will increasingly face similar procedural problems in complex war crimes trials as international criminal tribunals and will be happy to learn from their experiences.

Sign in / Sign up

Export Citation Format

Share Document