... Shortly after the Little decision the matters of McNab (Caroline) v HMA15 and HMA v James Hyn... more ... Shortly after the Little decision the matters of McNab (Caroline) v HMA15 and HMA v James Hynd16 appeared before the courts and it was held that ... 152 CRIMINAL JUSTICE IN A NEW SOCIETY In Zimbabwe, in the case of In re Mlambo,(M it was held that the time period starts ...
Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challeng... more Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challenge to every legal system that attempts seriously to balance the concerns of crime control and due process. In any new constitutional dispensation, this balance has to be re-appraised. This is particularly so because constitutions tend to emphasise the right to liberty of the individual and that in itself challenges anew those who wish to restrict this right. South Africa has recently faced this challenge in respect of its regime for criminal suspects on bail and, by enacting the 1997 Criminal Procedure Second Amendment Act, has opted for extraordinarily restrictive bail measures. These amendments were to be the subject of a recent judgment by the Constitutional Court.
Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challeng... more Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challenge to every legal system that attempts seriously to balance the concerns of crime control and due process. In any new constitutional dispensation, this balance has to be re-appraised. This is particularly so because constitutions tend to emphasise the right to liberty of the individual and that in itself challenges anew those who wish to restrict this right. South Africa has recently faced this challenge in respect of its regime for criminal suspects on bail and, by enacting the 1997 Criminal Procedure Second Amendment Act, has opted for extraordinarily restrictive bail measures. These amendments were to be the subject of a recent judgment by the Constitutional Court.
If we consider the rules governing civil or criminal matters, it is evident that time fulfils an ... more If we consider the rules governing civil or criminal matters, it is evident that time fulfils an important function in most legal systems all over the world. Much depends, for example, on the lapse of time between the issuing and serving of a legal document; or bringing a matter to trial before the prescription period of the offence; or disposing of a matter without it being unduly delayed. Despite varying practices which regulate these processes that are all concerned with a period of time, we find that time itself is neither specified nor defined as a standardised unit in most criminal justice systems. Nevertheless, courts are expected to determine whether a criminal matter has been unduly or unreasonably delayed without being given a yardstick by which to measure it. In some cases it is crucial to determine the starting point from which the time period should be calculated. Should one begin the calculation when an accused person is charged or start counting from the first day of ...
As one learns to expect in constitutional law, matters of the greatest importance for a country's... more As one learns to expect in constitutional law, matters of the greatest importance for a country's constitutional, political and economic life often arrive at court dressed in the drabbest factual garments. Putting this consideration aside and at the risk of exaggeration, the core issue in the Liquor Bill case was nothing less than the continued economic unity of South Africa. Against the backdrop of the creation in recent years of the new economy (characterised by the advent of black-empowerment initiatives, public-private partnerships and efforts at privatisation of state-owned assets), the national government's much-needed powers of regulation were about to be tested and defined. What the Liquor Bill 131 of 1998-introduced in the National Assembly on 31 August 1998-sought to achieve was summarised for the Court by Cameron AJ in the following terms: (a) the prohibition on cross-holdings between the three tiers involved in the liquor trade, namely producers, distributors and retailers; (b) the establishment of uniform conditions, in a single system, for the national registration of liquor manufacturers and distributors; and, in a further attempt at establishing national uniformity within the liquor trade, (c) the prescription of detailed mechanisms to provincial legislatures for the establishment of retail licensing mechanisms. 1 I Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bi/12000 (I) SA 732 (CC) para 69 (Liquor Bill). 283 8 'The question', stated Cameron AJ, 'is whether the substance of this legislation falls within the excluded field of "liquor licences", in which case the justifications itemised in s 44(2) [of the 1996 Constitution] will have to be shown; or whether it falls within a permitted competence of Parliament even without such justification.' Liquor Bill (note I above) para 68. 9 Ibid para 36.
In South Africa the criminal justice system is primarily controlled by the Criminal Procedure Act... more In South Africa the criminal justice system is primarily controlled by the Criminal Procedure Act1 and its application in the criminal process. The introduction of a justiciable Bill of Rights2 on 27 April 19943 ushered South Africa into a new legal and constitutional dispensation, which in tum affected the criminal justice system profoundly. In fact the criminal process has undergone an intense metamorphosis as a result of the introduction of the Bill of Rights. Witnesses and victims of crime have not escaped the impact of the Constitution on the criminal justice system. Their rightful place in the criminal justice process is the subject of this thesis
The powers of the prosecution service in South Africa are extensive, particularly when it comes t... more The powers of the prosecution service in South Africa are extensive, particularly when it comes to the exercise of its discretion to institute criminal proceedings, to negotiate plea and sentence agreements and to divert matters from the criminal process. A court cannot prevent a prosecutor from withdrawing a matter or from accepting a specific plea. It is the state that remains dominus litis. However it will be sufficient for the purposes of this paper to focus on how the prosecution service exercises its power when it negotiates a plea and sentence bargain and then to examine and determine the usefulness, fairness and the constitutionality of this process after 1994.
... Shortly after the Little decision the matters of McNab (Caroline) v HMA15 and HMA v James Hyn... more ... Shortly after the Little decision the matters of McNab (Caroline) v HMA15 and HMA v James Hynd16 appeared before the courts and it was held that ... 152 CRIMINAL JUSTICE IN A NEW SOCIETY In Zimbabwe, in the case of In re Mlambo,(M it was held that the time period starts ...
Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challeng... more Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challenge to every legal system that attempts seriously to balance the concerns of crime control and due process. In any new constitutional dispensation, this balance has to be re-appraised. This is particularly so because constitutions tend to emphasise the right to liberty of the individual and that in itself challenges anew those who wish to restrict this right. South Africa has recently faced this challenge in respect of its regime for criminal suspects on bail and, by enacting the 1997 Criminal Procedure Second Amendment Act, has opted for extraordinarily restrictive bail measures. These amendments were to be the subject of a recent judgment by the Constitutional Court.
Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challeng... more Restriction of liberty of the unconvicted, and accordingly presumed innocent, presents a challenge to every legal system that attempts seriously to balance the concerns of crime control and due process. In any new constitutional dispensation, this balance has to be re-appraised. This is particularly so because constitutions tend to emphasise the right to liberty of the individual and that in itself challenges anew those who wish to restrict this right. South Africa has recently faced this challenge in respect of its regime for criminal suspects on bail and, by enacting the 1997 Criminal Procedure Second Amendment Act, has opted for extraordinarily restrictive bail measures. These amendments were to be the subject of a recent judgment by the Constitutional Court.
If we consider the rules governing civil or criminal matters, it is evident that time fulfils an ... more If we consider the rules governing civil or criminal matters, it is evident that time fulfils an important function in most legal systems all over the world. Much depends, for example, on the lapse of time between the issuing and serving of a legal document; or bringing a matter to trial before the prescription period of the offence; or disposing of a matter without it being unduly delayed. Despite varying practices which regulate these processes that are all concerned with a period of time, we find that time itself is neither specified nor defined as a standardised unit in most criminal justice systems. Nevertheless, courts are expected to determine whether a criminal matter has been unduly or unreasonably delayed without being given a yardstick by which to measure it. In some cases it is crucial to determine the starting point from which the time period should be calculated. Should one begin the calculation when an accused person is charged or start counting from the first day of ...
As one learns to expect in constitutional law, matters of the greatest importance for a country's... more As one learns to expect in constitutional law, matters of the greatest importance for a country's constitutional, political and economic life often arrive at court dressed in the drabbest factual garments. Putting this consideration aside and at the risk of exaggeration, the core issue in the Liquor Bill case was nothing less than the continued economic unity of South Africa. Against the backdrop of the creation in recent years of the new economy (characterised by the advent of black-empowerment initiatives, public-private partnerships and efforts at privatisation of state-owned assets), the national government's much-needed powers of regulation were about to be tested and defined. What the Liquor Bill 131 of 1998-introduced in the National Assembly on 31 August 1998-sought to achieve was summarised for the Court by Cameron AJ in the following terms: (a) the prohibition on cross-holdings between the three tiers involved in the liquor trade, namely producers, distributors and retailers; (b) the establishment of uniform conditions, in a single system, for the national registration of liquor manufacturers and distributors; and, in a further attempt at establishing national uniformity within the liquor trade, (c) the prescription of detailed mechanisms to provincial legislatures for the establishment of retail licensing mechanisms. 1 I Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bi/12000 (I) SA 732 (CC) para 69 (Liquor Bill). 283 8 'The question', stated Cameron AJ, 'is whether the substance of this legislation falls within the excluded field of "liquor licences", in which case the justifications itemised in s 44(2) [of the 1996 Constitution] will have to be shown; or whether it falls within a permitted competence of Parliament even without such justification.' Liquor Bill (note I above) para 68. 9 Ibid para 36.
In South Africa the criminal justice system is primarily controlled by the Criminal Procedure Act... more In South Africa the criminal justice system is primarily controlled by the Criminal Procedure Act1 and its application in the criminal process. The introduction of a justiciable Bill of Rights2 on 27 April 19943 ushered South Africa into a new legal and constitutional dispensation, which in tum affected the criminal justice system profoundly. In fact the criminal process has undergone an intense metamorphosis as a result of the introduction of the Bill of Rights. Witnesses and victims of crime have not escaped the impact of the Constitution on the criminal justice system. Their rightful place in the criminal justice process is the subject of this thesis
The powers of the prosecution service in South Africa are extensive, particularly when it comes t... more The powers of the prosecution service in South Africa are extensive, particularly when it comes to the exercise of its discretion to institute criminal proceedings, to negotiate plea and sentence agreements and to divert matters from the criminal process. A court cannot prevent a prosecutor from withdrawing a matter or from accepting a specific plea. It is the state that remains dominus litis. However it will be sufficient for the purposes of this paper to focus on how the prosecution service exercises its power when it negotiates a plea and sentence bargain and then to examine and determine the usefulness, fairness and the constitutionality of this process after 1994.
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