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The principle of fairness in South African criminal trials

- Ndude, Tembinkosi

Authors: Ndude, Tembinkosi
Date: 2022-12
Subjects: Criminal law , Criminal law -- cases , South Africa
Language: English
Type: Master's theses , text
Identifier: http://hdl.handle.net/10948/60090 , vital:62984
Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
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Date Issued: 2022-12

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An evaluation of South Africa's legislation to combat organised crime

- Nkosi, Zaba Philip

Authors: Nkosi, Zaba Philip
Date: 2011
Subjects: Criminal law , Legislation -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
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Date Issued: 2011

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