scholarly journals LEGAL TRUTH: THE CONFLICT BETWEEN REAL JUSTICE AND LEGAL JUSTICE

2008 ◽  
Author(s):  
Patrick Mayer
Keyword(s):  
Criminal Justice ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Criminal Courts ◽  
Philosophical Discussion ◽  
System A ◽  
Evidence Rules ◽  
South African Constitution ◽  
Law Of Evidence

The following article is a chapter taken from my dissertation, and as such needs to be situated for the reader. The dissertation is a philosophical discussion concerning the divergence between ‘legal truth’ and ‘factual truth’, practically illustrated by critically evaluating the effect that our law of evidence, criminal procedure as entrenched in the Criminal Procedure Act, and the evidentiary exclusion clause entrenched in section 35(5) of the South African Constitution have on the ultimate decision of the court. It argues that often these rules and procedures obscure the truth rather than assist in finding it. The crux of the discussion revolves around decisions of our criminal courts, where accused persons who are factually guilty are acquitted due to the operation of our evidence rules and procedures which call for the exclusion of evidence in specific instances or on technical grounds. The result of this exclusion is that relevant reliable evidence is deemed not to exist for the purposes of the trial, and evidence which might otherwise have lead to the conviction of the accused person is put beyond the reach of the courts. This article then deals specifically with the debate surrounding ‘what is justice?’; it looks at various concepts of justice and seeks to show that within the confines of our positivistic criminal justice system — a marriage between positive and natural law approaches — we might well be able to avoid decisions that are ‘legally correct’ yet offend one, as one cannot really say that justice was served.

scholarly journals DILEMMAS OF SCIENCE AND THE CRIMINAL LAW: A SOUTH AFRICAN PERSPECTIVE

Obiter ◽  
2021 ◽  
Vol 30 (3) ◽  
Author(s):  
Jo-Mari Visser ◽  
Hennie Oosthuizen
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Scientific Evidence ◽  
The United States ◽  
Criminal Courts ◽  
Conviction Rate ◽  
System A ◽  
African Perspective

In light of the 85.9% conviction rate reported by the National Prosecuting Authority for the year 2007/2008, one would expect crime in South Africa to be comparatively under control. However, with only 11% of all reported cases of murder resulting in convictions in this country, it becomes clear that crime is still a very real threat to the Constitutional freedom of its citizens. This article explores the problems encountered in the harvesting, processing and presentation of expert scientific evidence in our criminal courts. The court ruling in S v Van der Vyver 2008 JOL 21332 C is analysed and presents an interesting example of the erroneous use of science in the criminal justice system. A comparative study is undertaken to illustrate further the extent of the problems inherent in the use of science within the criminal justice system and probe possible solutions. The use of scientific evidence in the jurisdictions of England/Wales and the United States of America are used as a focus for the comparative studies.

Victim Participation in Parole Proceedings in South Africa

2019 ◽  
Vol 34 (1) ◽  
Author(s):  
Jamil Mujuzi
Keyword(s):  
South Africa ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
South African ◽  
Justice System ◽  
Criminal Procedure ◽  
Prison Inmate ◽  
Parole Board ◽  
Victims Of Crime ◽  
The Right

South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.

1. Introduction

2018 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Professional Conduct ◽  
Criminal Courts

This introductory chapter briefly sets out the volume’s purpose, which is to explain the legal, procedural and evidential rules governing how cases are dealt with by the criminal justice system. It then explains the philosophy of the text and its unique features; introduces the key personnel and organisations within the criminal justice system; introduces the Criminal Procedure Rules; explains the classification of offences according to their trial venue; summarizes the jurisdiction of the criminal courts; stresses the importance of the pervasive issue of human rights; and highlights professional conduct considerations in the context of criminal litigation.

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.

scholarly journals Legal Philosophy of Pancasila as The Paradigm of The Criminal Justice System: A Philosophical Criticism for the Loss of a Sense of Humanity

2018 ◽  
Vol 54 ◽  
pp. 07001
Author(s):  
Rocky Marbun ◽  
Abdul Hakim ◽  
M. Adystia Sunggara
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Law Enforcement Officers ◽  
Philosophical Foundation ◽  
System A ◽  
Philosophical Criticism ◽  
Criminal Procedure Law ◽  
The Law

Since 1981, marked by the enactment of law number 8 of 1981 on criminal procedure law, it has become a consensus to abandon the Cartesian paradigm embodied in the inquisitoire principle. The inquisitoire principle sees any person drawn into a criminal justice struggle as an object. The Criminal Procedure Code (CPC) through the philosophical foundation of Pancasila, commands to adopt the accusatoire principle, in honor of the withdrawn party as a person entirely. However, the KUHAP/CPC formers forget the institutional legal culture of the thrown (gowerfen-sein) criminal justice system in the myth of modernity that is the objectification of human being. So that the law enforcement officers (investigators, public prosecutors, judges) always ignore Pancasila as the philosophical foundation of thought in carrying out the law.

1. Introduction

2019 ◽  
pp. 3-32
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Professional Conduct ◽  
Criminal Courts

This introductory chapter briefly sets out the volume’s purpose, which is to explain the legal, procedural and evidential rules governing how cases are dealt with by the criminal justice system. It then explains the philosophy of the text and its unique features; introduces the key personnel and organisations within the criminal justice system; introduces the Criminal Procedure Rules; explains the classification of offences according to their trial venue; summarizes the jurisdiction of the criminal courts; stresses the importance of the pervasive issue of human rights; and highlights professional conduct considerations in the context of criminal litigation.

1. Introduction

2021 ◽  
pp. 3-34
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Professional Conduct ◽  
Criminal Courts

This introductory chapter briefly sets out the volume’s purpose, which is to explain the legal, procedural and evidential rules governing how cases are dealt with by the criminal justice system. It then explains the philosophy of the text and its unique features; introduces the key personnel and organisations within the criminal justice system; introduces the Criminal Procedure Rules; explains the classification of offences according to their trial venue; summarizes the jurisdiction of the criminal courts; stresses the importance of the pervasive issue of human rights; and highlights professional conduct considerations in the context of criminal litigation.

1. Introduction

2020 ◽  
pp. 3-34
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Professional Conduct ◽  
Criminal Courts

This introductory chapter briefly sets out the volume’s purpose, which is to explain the legal, procedural and evidential rules governing how cases are dealt with by the criminal justice system. It then explains the philosophy of the text and its unique features; introduces the key personnel and organisations within the criminal justice system; introduces the Criminal Procedure Rules; explains the classification of offences according to their trial venue; summarizes the jurisdiction of the criminal courts; stresses the importance of the pervasive issue of human rights; and highlights professional conduct considerations in the context of criminal litigation.

1. Introduction

2016 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Professional Conduct ◽  
Criminal Courts

This introductory chapter briefly sets out the volume’s purpose, which is to explain the legal, procedural and evidential rules governing how cases are dealt with by the criminal justice system. It then explains the philosophy of the text and its unique features; introduces the key personnel and organisations within the criminal justice system; introduces the Criminal Procedure Rules; explains the classification of offences according to their trial venue; summarizes the jurisdiction of the criminal courts; stresses the importance of the pervasive issue of human rights; and highlights professional conduct considerations in the context of criminal litigation.

1. Introduction

2017 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Professional Conduct ◽  
Criminal Courts

This introductory chapter briefly sets out the volume’s purpose, which is to explain the legal, procedural and evidential rules governing how cases are dealt with by the criminal justice system. It then explains the philosophy of the text and its unique features; introduces the key personnel and organisations within the criminal justice system; introduces the Criminal Procedure Rules; explains the classification of offences according to their trial venue; summarizes the jurisdiction of the criminal courts; stresses the importance of the pervasive issue of human rights; and highlights professional conduct considerations in the context of criminal litigation.

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