File Name: south african criminal law and procedure .zip
Criminal Law in South Africa , third edition, offers a clear, comprehensive and practical explanation of the principles of criminal law in South Africa. The text addresses the general principles of criminal law as well as the elements of specific common law crimes and statutory offences. Legal theory is presented in light of the influence of the Bill of Rights, the emerging decolonisation debate, comparative perspectives and international criminal law. Designed to support understanding, the text succinctly explains criminal law principles with numerous case illustrations.
Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction.
The article focuses on the purposes of criminal law and punishment, and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. In recent years, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice 1 for dealing with collective violence has gained increasing traction.
The theory has been given impetus by various phenomena, noteworthy among which are the prominence now given to victims in criminal policy 2 and the pressure from international law.
It is not the purpose of this article to look at all of these consequences in depth. Furthermore, this question must be analysed within the framework of the broadest aims of transitional justice. We start from the premise that the mechanisms for recovery from a situation of collective violence involving serious human rights violations must cover diverse interests and aims, the compatibility of which may be challenging. However, a partial view of the problem, which covers only a possible claim for retributive justice by the victims, can lose sight of the other interests in play; it may give rise to the ultimate frustration of the objectives of transitional justice, namely, those of reconciliation, reconstruction of the social fabric, recovery from a conflictive past and consolidation of the new social order.
The present article is a contribution towards filling this gap: analysing the purposes of criminal law and punishment, and what they can achieve in relation to victims section 2 and society section 3 in transitional contexts. In contrast, criminal law and punishment should always be considered as just one of the many tools that states have at their disposal, even in transitional contexts, in the search for the best possible solution to fulfil the ultimate aim of maintaining social order, that is, the set of protected legal interests in a society.
The first aspect we shall address in our study is that of the supposedly beneficial effects that criminal punishment of the offender may have on the victim. However, it should be noted that there are significant differences between the two doctrines. The victim-oriented theory of criminal punishment focuses instead on the present, on the victims and their satisfaction.
Furthermore, retributionist theories, in both their classical and more modern versions, have been widely rebutted by scholars. Critics point out that the conception of punishment as an evil and a purpose in itself is not rational and that one evil cannot be obliterated or compensated by another.
Such an argument involves affirming a kind of natural right, not only to self-protection, but also to punishment, the existence of which is more than doubtful. The main problem with these theories lies, nevertheless, in the fact that the appeal to tradition or historical evolution cannot be a substitute foundation for the imposition of punishment. In other words, evidence of historical evolution from the institution of vengeance to punishment does not explain why and for what one is punished, whether then or now.
This argument would require us to investigate the purposes of the archaic institution of vengeance, in order to determine whether this could assist us in uncovering the purposes of punishment in modern times. Scholars, however, have cast doubt on the capacity of punishment to fulfil all of these purposes. Moreover, many of the desirable effects attributed to punishment by the supporters of these theories are achievable by other means that do not imply the imposition of an evil.
Punishment, as the imposition of an evil, goes beyond solidarity and cannot be explained by it. Those who see the satisfaction of certain interests of the victim, together with other social aims, as one of the possible aims or desirable effects of punishment ally themselves to consequentialist theories in the traditional sense, or to mixed or unitary theories of punishment.
In conclusion, we cannot claim the existence of a right to punishment 38 solely on the basis of its possible beneficial effects for victims. Contrary to or even together with the previous positions, we find some others, along similar lines yet with distinctive nuances, which argue that a criminal offence always causes a harm to the victim, further and distinct from the specific harm caused to the protected legal interest.
The only way this harm may be ended or eliminated would be by imposing a criminal punishment on the offender. It is thus argued that criminal punishment fulfils the function of putting an end to a disorientation in social life suffered by the victims, where this may arise from a lack or loss of confidence in the law if no punishment were imposed.
This argument reminds us of the Kantian theory, 48 which holds that a society that fails to punish is accomplice in the crime. These arguments usually present the same defects that have already been denounced in interpretations discussed in the previous section, namely, that the need to equalise the victim and the offender in the evil suffered lacks a rational explanation; also, that there is no demonstration that the expression of concern for the victims and their suffering requires the imposition of an evil on the offender.
Very much to the contrary: one asks oneself how the causing of an evil, ie imprisonment, to another can relieve the suffering of the victim, and whether reparatory measures centred on the victims themselves would not be more effective for this purpose. It is also unclear up to what point and in which crimes the victims suffer a trauma, and of what kind 52 or for what reason the recovery from this trauma necessarily requires the imposition of an evil on the offender.
However, social psychology has demonstrated that not all victims confront crime using such strategies, nor that they are likely to be the optimum strategies for overcoming or avoiding psychological disorder and suffering. The supposed domination by the perpetrator or the humiliation or subjection of the victim are no more than a subjective response experienced by some not even the majority of the victims.
This response should not be turned into a reality by virtue of a legislative choice, nor could it constitute the foundation of criminal prosecution. If it were indeed to be accepted, it would send an utterly incorrect message. Where, historically, within the ambit of private vengeance, the absence of a physical response to the crime through punishment was sanctioned socially with a loss of honour, this was because in a non-institutionalised system of control few alternative ways existed of obliging compliance with the so-called secondary rule, which addressed all of the members of the community.
In our opinion, the—at least abstract—potential of punishment to produce beneficial effects for the victims cannot be refuted.
The effects consist principally of demonstrating the injustice suffered by them and offering a certain degree of non-repetition guarantees, thereby assuaging their need for justice, restoring their confidence in the law and in society, and encouraging their non-desocialisation. We must acknowledge it as evident that, as human beings, our sense of justice leads us to require that bad acts be punished.
However, we must not forget that these feelings respond to the calculated reciprocity mechanism, 57 present not only in the human being, but also in other species with social behaviours. In conclusion, we may state that a strategy that attempts to satisfy all of the interests in play in order to build a sustainable peace must not neglect to respond to past crimes. Having said this, the state, through its monopoly on violence, may in our opinion moderate the understandable and legitimate instincts and desires for reciprocity of the victims and of the society as a whole and submit these to certain rational limits.
The various restorative justice mechanisms, eg mediation, are designed such that the victim has a voice in the conflict resolution process and is thus able to express his or her needs and obtain reparation.
Furthermore, restorative justice mechanisms contribute—and do so more effectively than conventional criminal justice—to the acknowledgement of responsibility by the offender, to his or her re-socialisation and to the restoration of interpersonal relations.
Social psychology has also questioned the affirmation that only criminal punishment, based on the idea of just deserts, re-establishes justice. The situation of asking for forgiveness expresses, first, that the offender shares those values and, secondly, an acknowledgement of and restoration of the dignity of the victims.
In conclusion, these studies state that punishment may be seen as insufficient or as unnecessary for restoring justice for victims. It is worth clarifying that we do not deem restorative justice to constitute an alternative to the traditional criminal justice system.
At the same time, when restorative justice is applied, there may be evidence of a reduced need for punishment if some of the purposes of the punishment are deemed to be at least partially fulfilled. In such circumstances, there is an argument to be made in favour of the reduction of the criminal punishment, or its replacement by an alternative sanction, a conditional suspended sentence or probation. It is also appropriate to point out the differences between transitional justice and restorative justice, and how the latter must be understood within the framework of the former.
While transitional justice is the product of a public design, restorative justice starts from the premise that all involvement in the various measures is voluntary. For this reason, we cannot talk about an imposed restorative justice. Rather, it is a case of the transitional justice processes allowing, on the one hand, the application of restorative justice mechanisms and, on the other, adopting a restorative perspective in their design, by adapting some of those mechanisms to the specific transitional framework.
Of course, not even restorative justice, or transitional justice with a restorative perspective, is sufficient to fulfil all of the aims of a transitional process, since it focuses on relationships and the interpersonal plane. For this reason, we must bear in mind that this is only one perspective to take into account within the set of tools that must make up the complex mechanism of transitional justice. The aims that criminal law fulfils or should fulfil in relation to society undergo profound changes in the contexts of transition when faced with the legacy of experiences of mass violence.
The phenomenology of the crimes themselves calls into question some of the purposes traditionally attributed to criminal law and to punishment: in particular, special deterrence, general deterrence and retribution or desert. In addition, there is a marked tendency to entrust to criminal law the achieving of new aims that are central to all transitional processes, such as the search for truth, the building of peace, and the founding of the new social and legal order arising as a result of the transition.
The contexts of transition require at least a partial rethinking of the traditional purposes of criminal law and of punishment. The massive nature of the violence perpetrated gives rise to the impossibility in practice of trying all of the persons who in some way participated in committing the crimes.
This circumstance frequently combines with the institutional weakness during the transitional period, which also affects the courts. These factors normally impose a selective criminal prosecution, which should at least be based on rational criteria such as the gravity or type of crimes, the identification of those who bear the greatest responsibility 79 or the representative nature of the cases. Another common feature of the crimes faced by transitional processes is their commission by organised groups or organisational structures governed by a strict hierarchy and, usually, by an ideology political, religious or rooted in other beliefs that is very strong and exclusive.
Although these circumstances do not serve to dilute individual criminal responsibility within a more diffuse collective responsibility, it is worth asking whether, once the apparatus or group concerned has been dismantled, the risk that the criminals will commit new crimes really exists.
It can be argued that transitional processes do not always involve the disappearance of the organisations involved in committing the abuses, but, rather, their conversion into legitimate groups and their participation in the new regime. Even in these cases, the disappearance of the context that favoured the structural violence, such as the cessation of armed conflict, the reduction in the power they held previously or the loss of support of part of the population, makes it really unlikely that these individuals would once again commit the same crimes.
Otherwise, where these circumstances have not disappeared and the criminals continue to perceive that they are supported by the power structures to which they belong, criminal punishment actually does little to contribute to its elimination.
Similarly, both deterrence and the rehabilitation function of punishment appear to have less relevance when dealing with crimes that are not the result of the deviant conduct of one or a few people, but are the consequence of the activity of perverted institutions 87 or of an extraordinary context generated by an inter-community conflict. The systematic nature of these crimes requires a response combining the penalties directed towards individuals with wider structural measures that eliminate, or at least reduce, the ground on which the ideology of the criminal system, or the origins of the conflict, is founded.
The purpose of criminal law which has the greater chance of retaining its full validity in transitional contexts is the protection of legal interest through the positive general, or integrating, prevention 88 or, according to concepts pertaining more closely to Anglo-Saxon doctrine, through the expressive function of punishment. This communication is delivered at two different stages. At a first stage, the mere existence of the law, by prohibiting some conducts and by threatening them with punishment, performs the function of informing about the prohibited behaviour and expressing the value of the protected legal interest.
At a second stage, the same function is developed by the application of criminal law. Here, we can distinguish three successive phases: first, the central core of the message of reprobation and stigmatisation is expressed through the ritual of the criminal trial, when the defendant is seated in the dock and faces the prosecution and the judge, as well as through the judgment officially declaring his or her responsibility.
Naturally, the validity and efficacy of the reproach expressed goes hand in hand with the legitimacy of the institutions national or international sending this message. The second phase in the construction of this message lies in sentencing.
We believe that the role of punishment is more than an element added to the message of reproach already contained in the fact of the criminal process and in the conviction.
On the contrary, it appears to us that punishment meets an expressive function of its own that consists in reflecting the gravity of the offence and the degree of blameworthiness: the more serious the act and the greater the degree of blameworthiness of the convicted person, the greater the punishment required to express the negative evaluation merited by the crime.
The third phase in which this function is developed is the enforcement of the punishment. When the offender serves his or her sentence, the seriousness and importance of the message of reproach and the gravity and blameworthiness of the act are once again confirmed, giving it a concrete and thus tangible content.
An acknowledgement of the three phases in which the communicative function is fulfilled does not, however, mean that the complete elimination of one of these impinges on the fulfilling of this purpose. This circumstance may be seen in transitional contexts, where specific priorities and demands arise, such as reaching a peace agreement or maintaining it; involving the criminals in investigating what has occurred and in reparations to benefit the victims; or avoiding a resurgence of the violence.
The combination of these objectives with the demand for criminal prosecution and sanctioning for past crimes generates an intrinsic tension inherent to all transition scenarios. They must achieve a balance between short-term solutions and long-term aspirations, which can be partially managed only by considering the objectives and transitional mechanisms as dynamic 94 and are therefore subject to a necessary balancing exercise.
The concurrence of these objectives may therefore suggest a flexible approach to criminal prosecution in one or all of the three phases mentioned. Thus, the priorities of the transitional process may be taken into account as constituting the factors affecting the enforcement of the punishment through extinguishing it with a pardon, suspending it, limiting it or replacing it with other kinds of measures.
This was the option chosen, for example, in Northern Ireland, with the early releases provided under the Good Friday Agreement of 10 April The same considerations could also affect the second phase in which the expressive function manifests itself, ie sentencing. They may lead to opting for a punishment less than proportionate to the gravity of the offence and its blameworthiness.
Finally, we believe that in transitional contexts, solutions that involve at least partial waivers of the criminal trial, in the form of amnesties or equivalent measures, rooted equally in political and criminal law considerations, should not be completely ruled out.
If we maintain the admissibility of these waivers of criminal prosecution, as we suggest, the communicative function to which the criminal trial is directed could be replaced, as an exception and due precisely to the exceptional nature of the transitional context, by other mechanisms transmitting the same message of stigma and reaffirmation of the legal values violated.
The ritual of the criminal trial has historically been chosen as the best tool with which to comply with the above-mentioned function; however, there is no reason why other mechanisms eg a public declaration of guilt before a truth commission, such as the South African Truth and Reconciliation Commission could not transmit the message satisfactorily in these exceptional circumstances, provided that certain requisites of legitimacy and fairness are satisfied.
Transitional experiences have led to the rise of a tendency to attribute to criminal law, as well as the classical aims we have discussed, other added objectives that are strictly related to the unusual context in which the transition develops.
First, there is a widespread imperative that the criminal trial is central to ascertaining the truth about the violent experience. This truth is deemed to be not only one of the indispensable elements for overcoming a conflictive past and giving non-repetition guarantees, but also a true right of victims. Furthermore, the criminal trial offers a public forum in which the truth determined in this way is officially declared by bodies the courts whose legitimacy is at least in principle consolidated.
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Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction. The article focuses on the purposes of criminal law and punishment, and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. In recent years, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice 1 for dealing with collective violence has gained increasing traction. The theory has been given impetus by various phenomena, noteworthy among which are the prominence now given to victims in criminal policy 2 and the pressure from international law.
Since 27 April , the Department of Justice and Constitutional Development has promoted Bills, which have been enacted by Parliament. In the Department promoted 5 Bills, 12 in , 16 in as well as in and , 3 in election year , 7 in , 10 in , 14 in , 8 in and 1 in This is an average of about 11 Bills per year. Forty of these statutes are entirely new statutes, giving an indication of the growth in our law since , mainly in order to give effect to the new constitutional dispensation.
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View Criminal Law Cap 1 and 2. Therefore, the manual should be used for guidance only, 2. Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law.
The Constitutional validity of search and seizure powers in South African criminal procedure. Vinesh Basdeo. This article is based on a Masters dissertation submitted by the author for the completion of the Master of Laws at the University of South Africa, Pretoria. An important part of crime investigation is the obtaining of evidence through the search and seizure of persons and things.
South African Journal of Criminal Justice, 23 3. ISSN This article will focus on witness anonymity as a tool to encourage the reporting of criminal activities and criminal victimisation by victims and other witnesses, and as a mechanism to ensure that witnesses in criminal proceedings are duly protected. Repository Staff Only: item control page.
Parliament is the national legislature law-making body of South Africa. As such, one of its major functions is to pass new laws, to amend existing laws, and to repeal or abolish cancel old laws. This function is guided by the Constitution of South Africa, which governs and applies to all law and conduct within South Africa.
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