Defence challenges of forensic scientific evidence in criminal proceedings in South Africa

by | Oct 13, 2019 | SACJ, SACJ V28 I1 2015

Defence challenges of forensic scientific evidence in criminal proceedings in South Africa

Authors Jo-Mari Visser

ISSN: 1996-2118
Affiliations: Senior Lecturer in Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 28 Issue 1, p. 24 – 39

Abstract

This article seeks to understand the roles of the two adversarial parties involved in the presentation and testing of forensic scientific evidence in criminal proceedings in South Africa, and to predict the future of challenging expert evidence in developing countries. The traditional roles of parties to an adversarial criminal trial are reviewed, with specific focus on the practice of challenging forensic scientific evidence presented by the prosecution, as are developments in the American legal system with reference to the effectiveness of challenging expert evidence presented by the prosecution. The possible impact of these developments on the future constitutionality of legal representation as practised in South Africa, is also briefly considered. The importance of reliable forensic scientific evidence employed in criminal proceedings necessitates not only the presentation of accurate forensic evidence by both adversarial parties, but also the informed cross-examination of opposing experts. This, in turn, demands equality in the adversarial battle, which, as it currently stands, does not exist in developing countries such as South Africa.

The South African National Drug Master Plan 2013-2017: A critical review

by | Oct 13, 2019 | SACJ, SACJ V28 I1 2015

The South African National Drug Master Plan 2013-2017: A critical review

Authors Simon Howell, Katherine Couzyn

ISSN: 1996-2118
Affiliations: URC Postdoctoral Fellow in the Centre of Criminology, Faculty of Law, University of Cape Town; Library and Information Manager in the Centre of Criminology, Faculty of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 28 Issue 1, p. 1 – 23

Abstract

In August 2013 the South African government released the newly revised National Drug Master Plan 2013-2017. The plan is intended to provide a central reference for the country’s drug regulation and elimination efforts. As this article documents, the plan is however riddled with internal inconsistencies and impractical resolutions. As a result, it will be extremely difficult to implement and unlikely to find utility in many South African cities and communities. The authors further argue that the plan has been designed in such a way that it absolves the government of any responsibility should it fail. It does so by subtly ensuring that blame for drug use can continue to be placed on the individual. This requires a punitive understanding of drug use, which is in direct contrast to the stated framework of the plan. As such, we argue that while the plan speaks the language of reform, it is actually far more concerned with continuing to treat drug regulation in South Africa as a matter of criminal justice.

Index

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Index

Authors Rosemary Kühn

ISSN: 1996-2118
Affiliations: University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. iii – xxiv

Abstract

None

The legal implications of S v Ndhlovu and Litako v S on the South African law of hearsay evidence: A critical overview

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

The legal implications of S v Ndhlovu and Litako v S on the South African law of hearsay evidence: A critical overview

Authors ‘Mampolokeng’ Mathuso Mary-Elizabeth Monyakane, Steven Moswetsi Monye

ISSN: 1996-2118
Affiliations: Senior Lecturer, Law of Evidence: Department of Criminal and Procedural Law, UNISA, and Advocate of the High Court of South Africa; Lecturer, Law of Evidence: Department of Criminal and Procedural Law, UNISA
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 308 – 332

Abstract

The change in course on the admission of extra-curial statements in S v Ndhlovu in 2000 caused concern about the correct way admissions of coaccused are to be admitted by the courts. Whilst many writers believed that s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 accommodated admissions of co-accused against another, the case of Litako v S pointed out the anomalies that mitigated against that position. This article supports the view in Litako v S that corrected the earlier position of the court. It is the argument in this article that courts should not make out cases for the state and that it is the duty of the prosecution to establish a case to answer for each accused person, whether co-accused or not. It is further argued that the Law of Evidence Amendment Act never repealed the common-law principles regarding admissions, and that, if that were the case, the legislature should have expressly done so. Furthermore, it is argued that the approach in S v Ndhlovu opened too wide s 3 of the Law of Evidence Amendment Act.

Tender irregularities and corruption in South Africa: The need to revisit issues of evidence

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Tender irregularities and corruption in South Africa: The need to revisit issues of evidence

Authors Prenisha Sewpersadh, John Cantius Mubangizi

ISSN: 1996-2118
Affiliations: None; Professor, Deputy Vice-Chancellor and Head of the College of Law and Management Studies, University of KwaZulu-Nata
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 292 – 307

Abstract

While South African courts have frequently adjudicated matters involving tender irregularities, few findings of corruption have resulted from such cases. The courts appear constrained by strict rules pertaining to admission of evidence, which may result in their refusal to admit evidence of alleged corruption in cases involving tender appeals or reviews. This is notwithstanding the existence of judicial discretion bestowed upon courts through statute. Further, the provisions of the Prevention and Combating of Corrupt Activities Act (PCCAA) could be reformed to ease evidentiary burdens relating to the prosecution of corruption offences. Corruption often involves the exchange of undue gratification, and this may result in the accumulation of illicit wealth. The creation of an offence of possession of unexplained wealth is encouraged by international law, and may be credibly justified taking into account the nature of tender corruption. The creation of such an offence within the PCCAA may assist the prosecution from an evidentiary perspective — in that the prosecution would not be expected to prove that the wealth was obtained unlawfully. Cogent reasons exist for the appropriate reform of the PCCAA with respect to evidentiary issues pertaining to tender corruption. The nature of tender corruption, its prevalence in South Africa, and the difficulties associated with gathering evidence of corruption, justify such assistance from the legislature.