Psychoanalytic psychology, sleep medicine, and the law: Scientifically reviewing Oscar Pistorius’ culpable homicide/ murder conviction

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

Psychoanalytic psychology, sleep medicine, and the law: Scientifically reviewing Oscar Pistorius’ culpable homicide/murder conviction

Author: Brent Willock

ISSN: 1996-2118
Affiliations: BSc (McGill) PhD (Michigan); Faculty member Adelphi University’s Gordon F. Derner School of Psychology
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 250 – 281
https://doi.org/10.47348/SACJ/v36/i2a4

Abstract

In parasomnias (sleep disorders), parts of the brain are alert, functioning well, but other regions are not awake, not functioning. These mixed sleep/wake states compromise mental processes in ways that can be surprising, and sometimes dangerous to self and/or others. Possible parasomnia should be considered in relation to all violent, perplexing events that occur after individuals fall asleep. Increased familiarity with the scientific study of dreaming and sleep disorders augments mental health and legal practitioners’ capacity to comprehend and assist. Expert testimony from these scientific fields can shift judicial focus from inappropriate punishment toward treatment and prevention, bringing enlightened justice, understanding, and relief to all parties. This article re-examines the controversial case of Olympic athlete, Oscar Pistorius, who killed his girlfriend, Reeva Steenkamp, during an episode of sudden arousal from sleep. Both the bail magistrate and the judge underscored major elements that made no sense in Pistorius’ narrative. When these crucial anomalies are approached with knowledge of dreaming and parasomnia, they become comprehensible, meaningful, and potentially transformative with respect to judicial outcome. Invaluable insights from these scientific fields were not considered during Pistorius’ trial. If they had been contemplated and found credible, the accused might have been found not criminally responsible. This possible miscarriage of justice might be reversed via appeal based upon these scientific principles.
Sleep medicine and psychoanalytic psychology have made major judicial contributions. These disciplines are indispensable for understanding perplexing legal cases. Without expert opinion from these scientific fields, miscarriages of justice may occur. Familiarity with these research findings is crucial for legal and mental health professionals.2 This article reviews a well-known, controversial case through these empirical lenses. The strong possibility that parasomnia (sleep disorder) severely impaired this defendant’s important cognitive processing capacity is presented. In such cases, non-pathological criminal incapacity (therefore acquittal) must be seriously considered in courts’ efforts to achieve optimal justice.

State compulsion of smartphone security features and the privilege against self-incrimination

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

State compulsion of smartphone security features and the privilege against self-incrimination

Author: Constantine Theophilopoulos

ISSN: 1996-2118
Affiliations: BSc LLB (Wits) LLM LLD (SA); Associate Professor, Interim Director and supervising attorney, Law Clinic, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 282 – 303
https://doi.org/10.47348/SACJ/v36/i2a5

Abstract

There is currently a lacuna in statutory and case law about the legal nexus between smartphone technology in the form of password/code or biometric-locked smartphone security features and the privilege against self-incrimination. This paper examines whether a recipient of a cyber-warrant, subpoena, or other compelling order, may invoke the privilege against self-incrimination in the face of a state order compelling the production of a security feature in order to unlock a smartphone and forensically access stored incriminating data files as admissible relevant evidence at trial. This paper examines the legal nexus by critical reference to relevant South African legislation, comparative international law, the Fifth Amendment privilege, and the foregone conclusion doctrine as described by the USA Supreme Court in Fisher v United States, Hubbell v United States and other federal courts.

Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

NOTE

Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce

Author: Bradley S Smith

ISSN: 1996-2177
Affiliations: Senior Lecturer: Research, The Independent Institute of Education’s Varsity College; Extraordinary Professor of Private Law, University of the Free State
Source: South African Law Journal, Volume 140 Issue 4, p. 697-714
https://doi.org/10.47348/SALJ/v140/i4a1

Abstract

In this note, I argue that PAF v SCF 2022 (6) SA 162 (SCA) is a groundbreaking judgment for curbing the abuse of the trust form by spouses who are married out of community of property and who engage in unscrupulous ‘divorce planning’ aimed at manipulating their personal estate values for the purposes of dividing matrimonial property at divorce. PAF not only removes several uncertainties regarding our courts’ ability to pierce the veneer of an abused trust but also broadens our conventional understanding of what trust-form abuse entails in the divorce setting, particularly by virtue of its engagement with the SCA’s earlier (prescient) judgment in Badenhorst v Badenhorst 2006 (2) SA 255 (SCA). In the process, I argue that there is a need to reconsider the test formulated in REM v VM 2017 (3) SA 371 (SCA) for taking the asset value of an alter-ego trust into account for accrual claims at divorce. I further assert that the new paradigm PAF ushers in requires formulating a consolidated test that takes into account this reconsideration, as well as the novel factual matrix in PAF. I conclude that this consolidated test is not only capable of being applied in the context of accrual liability, but also where a spouse is eligible to seek a redistribution order in terms of s 7 of the Divorce Act.

Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

NOTE

Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN

Author: Delano Cole van der Linde

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 4, p. 715-732
https://doi.org/10.47348/SALJ/v140/i4a2

Abstract

The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.

Lawful act duress

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

Lawful act duress

Author: Jacques du Plessis

ISSN: 1996-2177
Affiliations: BCom LLB LLM (Stell) PhD (Aberdeen)
Source: South African Law Journal, Volume 140 Issue 4, p. 733-762
https://doi.org/10.47348/SALJ/v140/i4a3

Abstract

Legal systems generally accept that contracts may be concluded by way of hard bargaining. This could entail obtaining assent through threats of lawful acts, such as terminating a contract by notice, refusing to enter into a new contract, or instituting legal proceedings. However, in exceptional cases, a threat of a lawful act may be regarded as unlawful or contra bonos mores and give rise to duress. Unfortunately, the South African contract law on identifying these cases is undeveloped. Recent advances in English law may provide guidance on when a threat of a lawful act should be regarded as unlawful. Relevant considerations that could point to such a conclusion include whether the party making the threat created or increased a situation of vulnerability in an unacceptable manner, and what benefits such a party obtained from the threat. It is less clear why it should matter whether a demand was made in bad faith.

Coercive and controlling behaviour in the Domestic Violence Act

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

Coercive and controlling behaviour in the Domestic Violence Act

Author: Dakalo Singo

ISSN: 1996-2177
Affiliations: LLB (Unisa) LLM (Wits)
Source: South African Law Journal, Volume 140 Issue 4, p. 763-794
https://doi.org/10.47348/SALJ/v140/i4a4

Abstract

This article focuses on two definitions of domestic violence — ‘coercive behaviour’ and ‘controlling behaviour’ — which were formally introduced into South African law by the Domestic Violence Amendment Act 14 of 2021. It tracks the legislative process, including an overview of the different iterations of the definitions as they appeared in the preceding Bills. This is followed by an analysis of the definitions’ grammatical, conceptual and legal meanings (including considering applicable foreign case law), after which various indicators are formulated. The article then examines whether the definitions are fit for purpose by analysing whether they are constitutional. This investigation reveals that the definitions suffer from numerous deficiencies: they are vague, overbroad and ambiguous, rendering them potentially unconstitutional. However, despite these deficiencies, the importance of the definitions — informed by the legislature’s intentions and the prevailing societal context, amongst other things — is likely to deter any potential constitutional challenges disputing their validity. The article concludes by proposing alternative definitional formulations that, if implemented, may circumvent any potential constitutional challenges.