ISSN: 1996-2118
Affiliations: University of KwaZulu-Natal, Durban
Source: South African Journal of Criminal Justice, Volume 28 Issue 3, p. 337 – 346
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ISSN: 1996-2118
Affiliations: Associate Professor in the Department of Criminal and Procedural Law, University of South Africa (UNISA), admitted attorney and conveyancer of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 28 Issue 3, p. 303 – 336
The development of new accessible technologies and the expansion of the Internet have changed the informational and communicational realities across the globe. The Internet has become a vital and accessible forum for free speech and a marketplace for the exchange of ideas. Online users rely on the safety, security and anonymity of the Internet and social media in their daily lives. However, the Internet has a potential for misuse and abuse. Hate speech involves the use of abusive, racist and disparaging comments, words or phrases directed against particular groups of people. The anonymity of the Internet has facilitated the dissemination of hate speech with such speech becoming more prevalent. Online hate speech has a significant impact on the lives of the people it seeks to denigrate. This article examines the tension between hate speech and freedom of expression on the Internet. This study reveals that online hate speech has become rife, and many countries have introduced laws placing restrictions on freedom of expression in order to curb online hate speech. It is submitted that limits on freedom of expression can affect the free exchange of ideas and information, and erode confidence in the network technologies that are used. It is recommended that appropriate mechanisms should be put in place to preserve the use of the Internet as a marketing, communication and educational tool, and at the same time teach online users to embrace ‘pluralism, tolerance and broadmindedness’. A collaborative effort by all stake holders (such as governments, non-governmental organisations, Internet Service Providers, international organisations) is also necessary to curb hate speech on the Internet and to promote tolerance and respect for diversity. The Internet should be preserved as an accessible forum for free speech and the exercise of freedom of expression should be exercised in a responsible manner.
ISSN: 1996-2118
Affiliations: Associate Professor of Law, Faculty of Law, University of Western Cape
Source: South African Journal of Criminal Justice, Volume 28 Issue 3, p. 284 – 302
For many years courts in Mauritius have considered a conviction that was at least 10 years old to be spent for the purpose of sentencing. However, in 2002 the Mauritian Supreme Court held that there was no concept of spent convictions in Mauritian law and that disregarding convictions of 10 years or over old was a mere practice. The Supreme Court has not developed clear guidelines for considering or disregarding such convictions for the purpose of sentencing. In 2013 a Bill was gazetted, inter alia, to introduce the concept of spent convictions in Mauritius. This article highlights the Mauritian case law on spent convictions and the relevant clause of the Bill. The author relies on legislation from, inter alia, South Africa, Australia, Seychelles and Jamaica to suggest how the Mauritian law on spent convictions could be improved.
ISSN: 1996-2118
Affiliations: Visiting Professor, College of Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 28 Issue 3, p. 257 – 283
The circumstances in which a police officer may, without warrant, arrest any person who commits or about to commit an offence in his or her presence in terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977 is by no means easy to determine. Does an offence committed in the presence of a police, or arresting officer, contemplate that incident which the officer witnessed or does it include arrest based on information brought to his or her attention by someone else? Assuming that the officer was present in the vicinity of the event but did not witness the actual commission of the offence, to what extent can he, in effecting an arrest under s 40(1)(a), rely on information from another officer or a third party who saw what happened? Would that meet the requirement of an offence committed in the presence of a peace officer? In other words, can the arresting officer see through the lense of his colleague or that of a third party?
ISSN: 1996-2118
Affiliations: University of South Africa
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 244 – 255
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ISSN: 1996-2118
Affiliations: University of KwaZulu Natal
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 231 – 243
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ISSN: 1996-2118
Affiliations: University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 215 – 231
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ISSN: 1996-2118
Affiliations: North-West University, Mafkeng Campus
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 204 – 214
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ISSN: 1996-2118
Affiliations: Professor of Law, Unisa
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 188 – 203
The impact of system variables on the accuracy and fairness of identifications made during police identification parades with reference to the latest research is considered. System variables are factors that the criminal justice system should control, such as the way witness memory is retrieved and recorded. This discussion points to certain basic principles that should ensure fair identification parades and shows how our current identification parade procedures can be improved to help guarantee a fair trial for all accused persons. It is recommended that identification parades be conducted ‘blind’, sequentially, and that all identification parades be videotaped. More effort should be made to keep multiple identifying witnesses separate, and a confidence statement must be obtained from the identifying witness directly after a specific identification is made.
ISSN: 1996-2118
Affiliations: Post-doctoral fellow at the North West University
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 163 – 187
In order to give effect to the complementarity regime of the Rome Statute, South Africa passed the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts. This Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on South African territory but also when they are committed outside the Republic, thus empowering South African courts to exercise ‘universal jurisdiction’ over these three international crimes. This article addresses the question as to whether South African courts, acting under the complementarity regime of the Rome Statute, are allowed, as the ICC is, to retry cases which have been already tried in foreign States if it is established that such cases were not tried in good faith and would be admissible for retrial before the ICC? In other words, does South African law allow South African courts to make a contribution in the fight against impunity for the perpetrators of international crimes by conducting a second trial of a person already tried in a foreign country?