Law of Procedure and Law of Evidence

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Open Access
Simplification of the South African criminal trial process: a psycholinguistic approach
(University of the Free State, 1998-11) Erasmus, Deon; Verschoor, T
English:In this research the validity of the following two hypotheses are tested within the broad framework of the right of an accused person to a fair trial, as embodied in section 35 of the Constitution of the Republic of South Africa, Act 108 of 1996: .. The criminal trial process is a communicative process in essence which aims at ensuring a fair trial for undefended accused persons; and • Ineffective communication takes place during the criminal trial process. The concept of a fair trial is discussed within a jurisprudential and communicative framework. In order for the criminal trial process to comply with the constitutional requirement of a fair trial the process itself has to be fair. The aim of the criminal trial process is thus to ensure a fair trial. However, in order to be fair, the process must be intelligible and accessible to all participants, especially in the case of undefended accused persons. It is pointed out that the criminal trial process is indeed a communicative process and that various factors impact negatively on communication."Distorted" communication is one of the factors leading to an undefended accused not receiving a fair trial. The criminal trial process is identified as a primarily oral process. Procedural explanations given to accused persons during the process are identified and the content of these procedural explanations is ascertained within the framework of case law and legal literature. These procedural explanations are indeed instances of communication between the presiding officer and the undefended accused. It is accordingly submitted that the first hypothesis is supported by both the positive law and communication theories. In order to test the validity of the second hypothesis, a field study was undertaken, employing a qualitative research methodology. Ten sample cases were identified and attended at court 30, Gelvandale Magistrate's Court, Port Elizabeth. The undefended accused persons in those cases were chosen as subjects of the empirical research. The purpose of the field study was to determine the level of intelligibility of procedural explanations afforded to the subjects by the presiding officer. In order to evaluate the information gathered during the field research, a norm to test the intelligibility of the procedural explanations had to be adopted. After evaluating available norms, the psycholinguistic approach of the Charrows was adopted. The performance of the subjects who took part in the field study was evaluated. It became evident that the subjects who took part in the field study, on average, understood only 37% of the procedural explanations afforded to them by the presiding officer. It is accordingly submitted that highly ineffective communication took place during the field research and the second hypothesis is supported by the results of the field study. The low level of intelligibility of the procedural explanations may have the result that on average, the undefended accused persons who took part in the research project did not receive a fair trail. Suggested instances of remedial action are accordingly advanced. It is suggested inter alia that legal aid should be afforded to undefended accused persons on a much larger scale and that a multi-disciplinary task team be appointed to re-address the position of the undefended accused.
Open Access
Inkwisatoriese en akkusatoriese elemente in die Amerikaanse pleitonderhandelingsproses: rigtingwyser of waarskuwingsteken?
(Faculty of Law, University of the Free State, 2002-06) Fick, C. v.d. M.; Snyman-Van Deventer, E.
No abstract available
Open Access
Are the rights of the disabled a reality in South Africa? Part One
(Faculty of Law, University of the Free State, 2003-12) Reyneke, J. M.
English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand, there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons leads to exclusion from functioning in a normal way in the community and the denial of the right to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
Open Access
Addressing domestic violence: to what extent does the law provide effective measures?
(Faculty of Law, University of the Free State, 2004) Kruger, H. B.
English: The high incidence of domestic violence in South Africa calls for a competent legal response. The Constitution as well as international human rights conventions oblige the state to protect human rights, including the rights of victims of domestic violence. The government is, therefore, challenged to enact effective legal measures to address domestic violence. This paper undertakes to examine the current legal remedies and protection available to victims of domestic violence. The focus is on the Domestic Violence Act 116 of 1998. The Act is discussed, compared to previous legislation and critically evaluated to assess its effectiveness in addressing domestic violence.
Open Access
Are the rights of the disabled a reality in South Africa? Part two
(Faculty of Law, University of the Free State, 2004-06) Reyneke, J. M.; Oosthuizen, H.
English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons lead to the exclusion of them to function in a normal way in the community and the denial of their rights and to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
Open Access
The emergence of a modern international criminal justice order
(University of the Free State, 2006-05) Swanepoel, Cornelis Francois; Fick, C. P. Van der Merwe
English: This study has investigated the emergence of an international criminal justice order from its inception to its current status. It has investigated the emergence of an international criminal justice order by referring to: (1) the early attempts by nations to control the waging of war; (2) the influence and impact of the Nuremberg and Tokyo International Criminal Tribunals; (3) the emergence and rooting of international human rights and humanitarian law in coexistence with international criminal law, particularly since the adoption of the 1949 Geneva Conventions; (4) the influence and impact of the international criminal ad hoc tribunals for the former Yugoslavia and Rwanda; (5) recent attempts by states to exercise universal jurisdiction such as in the Pinochet and Congo cases; (6) the establishment of the International Criminal Court and numerous aspects of international criminal law that have been established by the Rome Treaty creating the Court; (7) the obstacles that are faced by the court; (8) other transitional justice mechanisms in an ongoing attempt to provide accountability and redress where serious infringements of international human rights and humanitarian law have occurred; and (9) a South African perspective of the past and current status of international law in domestic law. It has established that although the sovereignty and equality of states remains a cornerstone of international law, inroads have been made into the doctrine of absolute state sovereignty to the extent that it is now universally recognised that certain crimes are so reprehensible in their nature, that they warrant prosecution wherever they are committed, no matter by whom they are committed. It has further established that international criminal law and justice did not evolve overnight and most of its current status is ascribable to unfortunate and indescribable human suffering. It has provided a historical perspective of the early attempts to regulate the waging of war, and showed the impact of the International Military Tribunal at Nuremberg and Tokyo, most significantly establishing individual accountability as opposed to only state accountability. The latter development led to an introduction, resurgence and development of human rights and particularly humanitarian law subsequent to World War II, to the extent that the destiny of international criminal law is unavoidably interwoven with the former two branches of international law. It proceeded to record and demonstrate the impact on international law generally and international criminal law in particular, with the establishment of the ICTY and the ICTR. It has demonstrated that the establishment of these two ad hoc tribunals provided impetus to renewed calls for the establishment of a permanent International Criminal Court and has greatly contributed to the recording and further development of international criminal law. Lastly, it has provided much impetus for states to exercise universal jurisdiction over prosecution of core crimes. The latter impetus provided the background to a chapter in this work indicating positive steps by states to exercise universal jurisdiction. It proceeded to provide the historical background for the eventual establishment of the International Criminal Court and concurrently demonstrated its impact on the development of an international order of justice. The research provided a brief analysis of transitional justice models in recent times, contributing to an analysis of what lessons may be learned from these attempts of various transitional societies. It then proceeded to provide a South African perspective, particularly the evolution of the status of international law in South African domestic law. The thesis concluded that the need for a consistent international criminal justice order is validated and although the international community is continually shocked by ongoing atrocities around the globe, significant progress has been made in recent decades to extend the international rule of law.
Open Access
Sexual Offences Courts: better justice for children?
(Faculty of Law, University of the Free State, 2006-12) Reyneke, J. M.
English: Child victims of sexual abuse are vulnerable witnesses who experience trauma and secondary victimisation when they testify in sexual abuse cases. Sexual Offences Courts aim to alleviate this problem in various ways. The main focus of this article is to examine the prescribed blueprint for Sexual Offences Courts in order to determine whether blueprint-compliant Sexual Offences Courts contribute to better justice for child victims of sexual offences. Each blueprint requirement is therefore analysed with the aim of determining whether possible advantages for child victims can be identified.The conclusion is reached that substantial advantages for child victims are provided by blueprint compliant Sexual Offences Courts. By 2005 54 Sexual Offences Courts were established countrywide and official statistics indicate that these courts are very successful. However, despite numerous commitments by government to establish more of these courts, a moratorium on the establishment of new courts was announced. It is argued that blueprint compliant Sexual Offences Courts do indeed provide better justice for children and therefore more of these courts should be established at a much faster rate.
Open Access
Universal jurisdiction as procedural tool to institute prosecutions for international core crimes
(Faculty of Law, University of the Free State, 2007-06) Swanepoel, C. F.
English: The establishment of the International Criminal Court (ICC) with its intended purpose of ending the cycle of impunity that has notoriously attached to the perpetrators of gross human rights violations in the past hails a new chapter in international criminal law and justice. The structure of jurisdiction introduced by the ICC relies to a great extent on the co-operation of states to nationally prosecute perpetrators of gross violations of human rights. The ICC itself is intended to complement national jurisdiction and will only prosecute the most serious international crimes where the state that can exercise jurisdiction is either unwilling or unable to do so. This by necessity implies that states that are party to the ICC will be expected to establish and foster ways and means to enable themselves to investigate, prosecute, defend, adjudicate and to provide assistance to the ICC. One of the grounds upon which a state may exercise jurisdiction in terms of international criminal law is that of universal jurisdiction. This article explores aspects of the principle of universal jurisdiction and concludes that its application and development is of utmost importance in the quest of the international community to establish a credible international legal order.
Open Access
Sexual Offences Courts in South Africa: quo vadis?
(Faculty of Law, University of the Free State, 2008-12) Kruger, H. B.; Reyneke, J. M.
English: Since the establishment of the first Sexual Offences Court in Wynberg in 1993, various developments have taken place that include, but are not limited to, the following : several investigations into these courts were undertaken; the Sexual Offences and Community Affairs Unit (SOCA Unit) was established; a blueprint for Sexual Offences Courts was drafted and later refined; and, by 2007, the number of Sexual Offences Courts had increased to 59. These courts have performed exceptionally well compared with general regional courts and conviction rates rose to 70 per cent on average. Despite the obvious success of these courts, the Minister of Justice and Constitutional Development declared a moratorium on the establishment of additional Sexual Offences Courts pending the outcome of an evaluation of existing Sexual Offences Courts. In this article, a synopsis of the development of Sexual Offences Courts is given and the subsequent evaluation commissioned by the Minister is assessed and is supplemented with recommendations to enhance efforts to combat sexual offences through the Sexual Offences Courts.
Open Access
The symbiotic integration of theory and practice: a sui generis approach
(University of the Free State, 2009) Bezuidenhout, I. J.; Swanepoel, C. F.
𝑬𝒏𝒈𝒍𝒊𝒔𝒉 The teaching of a substantive law subject and the teaching of a practical skills course have the potential for integration. Students should leave institutions of higher learning with theoretical knowledge, practical skills and the ability to integrate both in pursuit of a career. In order to produce well qualified graduates, more attention ought to be paid to practical legal training in the initial years of study. This study intends to recommend possible solutions towards the integration of legal theory and skills. This study advocates the full integration of theory and practice in the law curriculum and will further argue that clinical legal education is the best vehicle to achieve this. The study will conclude that clinical legal education should be viewed as the culmination point of other skills training options. The South African solution to legal education may lie in an approach which combines different methodologies in all four years of the LL. B degree. ___________________________________________________________________
Open Access
The demise of the Roman-Dutch 'kommer-recht: interpretation of statutes so as to conform to the spirit, purport and objects of the South African Bill of Rights
(Faculty of Law, University of the Free State, 2009-06) Swanepoel, C. F.
English: The Supreme Court of Appeal (in a judgment dated 23.11.07) in the case of Bid Industrial Holdings v Strang (2007) SCA 144 (RSA) (now cited as 2008(3) SA 355 (SCA)) held that the common-law requirement of arrest to found or confirm jurisdiction where an incola plaintiff wishes to sue a foreign peregrinus, which procedure is authorised in section 19(1) (c) of the Supreme Court Act 59/1959, is unconstitutional. In essence it was so held because such an arrest restricts a person's liberty and freedom (as entrenched in section 12 (1) of the Constitution) without a just cause. This article evaluates the judgment and highlights the importance of the full historical context and rationale for the existence of a common-law rule as yardstick against which to measure its constitutional justifiability. In this instance the rationale for the existence of the common-law rule of jurisdictional arrest was also, in essence, premised on the unequal treatment of foreigners vis à vis citizens, and predictably, this could not have passed the standard set by section 39(2) of the Constitution. The article investigates the method employed by the SCA in its interpretation of the alleged unconstitutional stipulations of the Supreme Court Act so as to bring it in line with the spirit,purport and objects of the South African Bill of Rights. Special attention is paid to the criticism of the judgment that it failed to comply with the peremptory stipulations of section 172 of the Constitution. The article concludes that such criticism is unwarranted.
Open Access
Dignity: the missing building block in South African schools?
(Faculty of Law, University of the Free State, 2010) Reyneke, J. M.
English: There is a dire need in South Africa to build a strong education system to meet the needs and expectations of its people. Unfortunately, education is currently in an unacceptable state, with, inter alia, escalating school-based violence, deteriorating matriculation results and standards, high absenteeism rates among educators, strikes, and a lack of proper facilities and infrastructure. Lack of respect for the right to dignity of stakeholders will be investigated as an underlying contributing factor to this unfortunate situation. First, the concept of dignity will be discussed. Secondly, certain conduct, actions and decisions on the part of the different stakeholders will be considered with specific reference to the impact thereof on the different dimensions of the right to dignity of other stakeholders. It will be argued that all stakeholders in education infringe, to some extent, the right to dignity of others and that they should be sensitised to these infringements.
Open Access
A historical and comparative study of human rights violations in criminal investigations in Lesotho
(University of the Free State, 2010-11) Lenka, Thamae Caswell Liphapang; Van der Merwe Fick, C. P.
English: The issue of human rights violations in criminal investigation emerges as one of the much debated subjects amongst academics since the inception of the idea of the fundamental human rights all over the world. Human rights remain a center pillar and a pivot around which criminal justice system revolves. In Lesotho, for example, the question of human rights has been critical in the light of the fact that, since independence on the 4th of October 1966, there was never a real and tangible instrument which guaranteed human rights. The 1966 Constitution which contained entrenched Bill of Rights was suspended in 1970. From 1970 until 1993, Lesotho was governed undemocratically. There were no periodic elections as prescribed by the 1966 Constitution. The 1970 interim authority introduced orders which administered the country. Around that time, besides interim orders, the country was governed through military dictates, 90 days detention without trial and state of emergency laws and regulations. Citizens were arrested, searched and charged arbitrarily by the governments of the day. The study, firstly, commences with a thorough investigation of the violation of the fundamental human rights. It gives a historical background of Lesotho political landscape, legal system, Lesotho mounted police service evolution, and practical human rights violations. The study, secondly, draws a comparative scenario between Lesotho, the Republic of South Africa, the United States of America and the United Kingdom as far as human rights violations are concerned. The question of police use of force, whether deadly or moderate, while conducting arrest, search or seizure, has been thoroughly investigated and discussed. Human rights material, documents and instruments internationally or locally have been identified, analyzed and discussed. Based on the findings of the research, lessons and recommendations for Lesotho have been drawn. The study argues that generally speaking, there are no adequate control mechanisms put in place to regulate police powers in Lesotho compared to other jurisdictions. It further argues that, some jurisdictions, such as the United Kingdom, the Republic of South Africa and the United States of America have some advanced police intervention programmes aimed at improving and constantly checking police work. The Republic of South Africa in particular, has moved away from the apartheid past tendencies and legacy which saw the police use repressive means in dealing with the public unrest. For example, the principle of Parliamentary Sovereignty encouraged them to abuse their power as illustrated in the decision of Sachs v Minister of Justice1 where the Judge had this to say: ”Arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon life, liberty and property of any individual subject to its sway, and that it is the function of the courts of law to enforce (Parliament’s will).” However, this scenario changed with the introduction of the interim Constitution of 1993 which ushered in a democratic majority rule in 1994. The introduction of the 1993 interim Constitution brought with it a Constitutional State founded on the supremacy of the Constitution and the rule of law as opposed to a long practiced Parliamentary rule.2
Open Access
Dying to starve: a comparative analysis of legal aspects relating to consent in force-feeding of both minor and adult anorexic patients
(Faculty of Law, University of the Free State, 2010-12) Karels, M. G.; Oosthuizen, H.
English: The authors explore the legal complexities surrounding the force-feeding of anorexic patients. Due to the myriad of difficulties relating to anorexia nervosa, treatment is intricate. The aim of this exposition is to clarify legal issues of consent and self-determination, with regard to both adult and minor patients. In addition, the distinction between 'irrational' and 'incompetent' refusal will be discussed, with the authors maintaining that the 'irrational' refusal of an adult patient should be respected by the law. To come to an informed conclusion, the authors will first analyse the medical and psychological aspects of anorexia nervosa. Secondly, the South African position as shaped by the Mental Health Care Act, the Children's Act and the National Health Act will be contrasted with the position in Great Britain in order to determine the international perspective and its contrast, or not, to South African law.
Open Access
The best interests of the child in school discipline in South Africa
(Tilburg University, 2013-06-28) Reyneke, Jacomina Margaretha; de Groof, J.; Pretorius, J. L.; van Genugten, W. J. M.
No abstract available.
Open Access
Legal educators – the peddler of precedent, the skill builder and the socially conscious knowledge generator
(University of the Free State, 2014) Bezuidenhout, Inez; Karels, Michelle
The time is rife to encourage law teachers to evaluate their individual subjective views of the law before embarking on another study of best-suited methodologies for modular teaching. This article does not aim to entertain the various methodologies of legal education in order to determine a best-fit or fit-for-purpose standard of legal teaching. It rather examines the epistemological importance of the law teacher’s intrinsic view of law, and its translation in legal education, thereby recognising the continuous transformation of exploratory educational discourse. The article purports that the personal views of law held by a law teacher are expressed in the way law is interpreted and articulated to students. In illustration of the above premise, we refer to three general types of law teacher. The first type honours the positive law, thereby preserving the recognition of contextualised doctrinal institutions of the law. The second, and most sought after in the contemporary context, prizes applied skill as a commodity necessary for practice. The third type augments teaching philosophy with social responsibility and therein the pursuit of good justice. We conclude that all three types have advantages and challenges. However, South Africa, as a plural society, requires law teachers who acknowledge that law has a social mandate and that the knowledge they instil must be fused with social consciousness in order for students to contribute to both society and the development of law as a professional discipline.
Open Access
Die bekostigbaarheid van 'n aktiewe verdedigingsreg in die Suid-Afrikaanse strafregstelsel
(Faculty of Law, University of the Free State, 2014) Bezuidenhout, Inez; Karels, Michelle
English: Oscar Pistorius' bail application highlighted equality concerns within criminal justice. In essence, it demonstrated an imbalance of the right to equality before the law, and its associated right to equal protection and benefit of the law, within adjectival procedure and, more specifically, pre-trial release. Whether section 9(1) rights are equally applied to bail applicants of little or no notoriety is the concern of this research. This submission is a theoretical evaluation of an accused person's constitutional right to equality before the law in the South African criminal justice system and queries whether bail applicants, who do not have the infamy or financial resources of Pistorius, are reliant solely on the machinery of the state and therein the evidential capability of the prosecution service? The focus is on opposed applications where the burden of proof shifts to the applicant. Against this background, constitutional rights are approached in two lines of inquiry, namely: does the bail applicant enjoy equality of arms with the state where the applicant carries the onus of proof, and do economic differences between bail applicants influence constitutional equality rights? The authors conclude that economic differences have the potential to infringe constitutional guarantees in the bail process, and therein influence both equality of arms and active defence rights. The authors posit that legal aid should be extended to prevent rights infringement and that the inquisitorial nature of the South African bail process provides the ideal avenue to bridge equality concerns in criminal justice.
Open Access
South Africa's obligation as member state of the International Criminal Court: the Al-Bashir controversy
(Faculty of Law, University of the Free State, 2015) Swanepoel, C. F.
This article is a commentary on the judgement of the North Gauteng High Court on 24 June 2015 in the matter of The Southern Africa Litigation Centre v Minister of Justice and Constitutional Development, which dealt with the recent controversy surrounding the South African government's failure to arrest Mr Omar Hassan Ahmed al-Bashir, president of the Republic of Sudan, to be prosecuted by the International Criminal Court (ICC). This judgement will be analysed with particular reference to the ICC's Pre-Trial Chamber Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir's Arrest and Surrender to the Court, to which the North Gauteng court referred. The judgement of 24 June was preceded by an order of the court on 14 June, which declared the state's conduct constitutionally invalid, having failed to take steps to arrest and/or detain Mr Bashir. The state was ordered to take all reasonable steps to "prepare to arrest President Bashir without a warrant in terms of section 40 (1) (k) of the Criminal Procedure Act, 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court". The judgement under discussion is the court's reasons for this order.
Open Access
Mediation as an alternative to litigation with special reference to medical negligence claims
(University of the Free State, 2021) Muller, Errol Cedric; Swanepoel, C. F.
In the recent past, healthcare in South Africa faced, and continues to face, considerable challenges related to an increase in medical negligence claims. The consequences of this increase in claims affect both the public and the private healthcare sectors. Primary healthcare at public hospitals and clinics suffers, because money is spent on legal fees and claim pay-outs, instead of its intended purpose of providing healthcare. Private hospitals and medical professionals are confronted with ever-increasing indemnity insurance premiums, doctors practice defensive medicine to avoid claims, and private healthcare users pay more for private healthcare. The conventional method of resolving medical negligence disputes is through adversarial court litigation. The parties enter into a trial by battle, they present their evidence and a presiding officer renders a win–lose judgment. Litigation, and the litigation of medical negligence claims, in particular, is expensive, time consuming, complex, and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Moreover, attempting to resolve medical negligence issues through adversarial processes does not promote normative constitutional values, such as dignity and equality and, importantly, access to justice. This necessitates legal reform and the adoption of alternative and transformative practices to dispute resolution. It is argued in this study that mediation offers a viable alternative to litigation generally, and for medical negligence claims, specifically. Mediation, in its barest essence, is third-party (mediator) -facilitated dispute resolution through negotiation. The process is less expensive, less time consuming, and uncomplicated, and party oriented. Mediators assist participants to create their own solution based on their needs and interests, and the mediation process is not aimed at finding a winner or a loser. Medical negligence claims are often traumatic for both the injured patient and the medical professional/s who treated the patient. Having the opportunity to resolve their dispute in a dignified, non-threatening environment, on a level playing field, is something litigation simply cannot provide. Significantly, the process of mediation enhances the constitutional imperative of access to justice in the context of medical negligence claims on more than one level. The parties have access to a process that provides them with the opportunity to create their own solution to a dispute, using a process that is party oriented, quick, and less expensive than litigation. The cost and time savings enhance social justice by decongesting court roles, freeing up funds for primary healthcare, reducing the cost of private healthcare and increasing confidence in the rule of law. The judiciary and the legislature, through various judgements and statutory enactments, have demonstrated their support for the use of mediation as an alternative to litigation. The previous minister of Health and several other commentators, academics and practicing mediators have voiced their support for using mediation. The prevailing adversarial culture amongst legal practitioners and the public, in particular, is an obstacle to the more generalised use of mediation. However, and conversely, transforming adversarial thinking and practices could be the ultimate solution to institutionalising mediation. The main drivers behind an effort to radically change legal culture, away from litigation, towards more facilitative dispute resolution mechanisms, will necessarily have to come from the legal profession. Education is the vehicle for transformation, starting from basic education, and moving on to tertiary education and continued professional education. Confidence in the mediator and trust in the process are indispensable requirements for parties when they elect to mediate a dispute. A properly trained mediator is, therefore, crucial for facilitating the process, particularly in medical negligence claims. Mediators in medical negligence matters must, in addition to conventional training, receive specialised training in aspects related to facilitating these types of claims.

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