The onus of proof and presumption of innocence in South African bail jurisprudence
- Authors: Makasana, Velile
- Date: 2013
- Subjects: Criminal procedure -- South Africa , Bail -- South Africa , Detention of persons -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10186 , http://hdl.handle.net/10948/d1020911
- Description: The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.
- Full Text:
- Date Issued: 2013
- Authors: Makasana, Velile
- Date: 2013
- Subjects: Criminal procedure -- South Africa , Bail -- South Africa , Detention of persons -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10186 , http://hdl.handle.net/10948/d1020911
- Description: The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.
- Full Text:
- Date Issued: 2013
An evaluation of the constitutionality of the common law crime of criminal defamation
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
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