Ensuring procedurally fair identification parades in South Africa

by | Oct 13, 2019 | SACJ, SACJ V28 I2 2015

Ensuring procedurally fair identification parades in South Africa

Authors Bobby Naudé

ISSN: 1996-2118
Affiliations: Professor of Law, Unisa
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 188 – 203

Abstract

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.

Complementarity, universal jurisdiction and the ne bis in idem clause of the South African Constitution

by | Oct 13, 2019 | SACJ, SACJ V28 I2 2015

Complementarity, universal jurisdiction and the ne bis in idem clause of the South African Constitution

Authors Evode Kayitana

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

Abstract

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?

The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013: A critical analysis

by | Oct 13, 2019 | SACJ, SACJ V28 I2 2015

The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013: A critical analysis

Authors Lirieka Meintjes-van der Walt, Izette Knoetze

ISSN: 1996-2118 Affiliations: Adjunct Professor of Law, Law, Science and Justice Research Niche Area Leader Faculty of Law University of Fort Hare, Advocate of the High Court of South Africa; Legal Researcher, Legal Aid South Africa, Adjunct Research Fellow, Law, Science and Justice Research Niche Area, University of Fort Hare, Admitted Attorney Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 131 – 162

Abstract

The Criminal Law (Forensic Procedures Amendment Act, 37 of 2013 (the Act) established the long-awaited National Forensic DNA Database of South Africa in terms of section 15G of the South African Police Service Act 68 of 1995. No other criminal investigation procedure has grabbed the attention of society as much as DNA-profiling. The analysis of the Act below centres on the apparent conflicting interests of society, namely the ability of the State to use DNA for the enforcement of justice, on the one hand, and the protection of human rights and privacy of its citizens, on the other hand. As a DNA database is comprised of DNA profiles derived from biological samples, the manner of collection, storage and use of essentially sensitive personal data raises ethical, social and legal issues. This article scrutinises the Act and its ability to balance the conflicting interests between ‘crime control’ on the one hand, and, on the other hand, ‘due process’ and how these competing interests are accommodated in the regulation of the collection of DNA samples, the retention and removal of DNA samples as well as DNA profiles for the establishment of an intelligence DNA database for South Africa. In this article a rights-based approach is followed, which includes the principle of proportionality as found in South African constitutional jurisprudence, to examine the provisions of the Act and to determine whether the Act justifiably limits certain rights of the individual.