‘A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 - ‘The shoot to kill debate’ sought to investigate the rationale and necessity behind the call for yet another amendment of section 49, that purports to clarify the rules under which police are allowed to use their firearms. Bold statements emerged from South Africa’s leaders and several politicians, urging the police to ‘shoot to kill’, and may have the effect of threatening the country’s young and vulnerable constitutional democracy. The research comprised an historical overview of section 49, encompassing the use of force pre- and post- Judicial Matters Second Amendment Act 122 of 1998, followed by an overview of the current section 49. On the face of it, section 49 violates some constitutionally protected rights, among which are the right to life, to freedom and security, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. The ‘new’ section 49 however, withstood Constitutional muster as set out in Re: S v Walters&another. The research proceeded to contrast the current section 49, against the common law defence of private defence. A private individual invoking the defence of private defence is weighed against the law enforcement official invoking the defence under section 49. It is argued that the level of proof in the latter is higher as opposed to the former, resulting in the contention that the law enforcement officer is unfairly discriminated against. The reverse onus, whereby the onus is shifted onto the arrestor, is further canvassed. In an endeavour to interpret the Bill of Rights of the Constitution of South Africa Act 108 of 1996, the researcher considered international instruments such as the Canadian Constitution, where the use of force in effecting an arrest is regarded as legitimate, under certain conditions. In concluding the research it was established that the voiceferous calls, for the police to be able to ‘shoot to kill’, is both unnecessary and irresponsible. Section 49 has survived constitutional scrutiny. The use of force when effecting an arrest is sanctioned, provided that it is in line with the constitutional provisions where the sanctity of human life is respected and emphasized. The police do not need more powers to use deadly force because they already have all the powers that they need! There is a lack of knowledge and understanding by the leaders on the application and interpretation of section 49. Proper and effective training of police in Criminal Procedure and Criminal Law, specifically in the interpretation and understanding of section 49, with proper guidelines to limit the potentially excessive scope of section 49, is identified. The training should also include the mind set that ‘shooting to kill’, should not be taken lightly, should be limited and confined to what is reasonable and proportional in the circumstances and should only be exercised as a last resort A fully capacitated and well resourced police force will also empower and enable police officials. / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

“It has been said that the victim of a sexual assault is actually assaulted twice- once by the offender and once by the criminal justice system.”1 South Africa’s rape shield provision is contained in section 227 of the Criminal Procedure Act.2 The purpose of its enactment is to protect a complainant in a sexual offence matter from secondary victimisation during the trial as far as possible, by restricting the type of evidence that is admissible and the circumstances under which such evidence can be found to be admissible. This rationale has come under attack for its effect on the fair trial rights of the accused. There has been no challenge to the constitutionality of section 227 before a court yet. However, there are numerous rumblings of discontent at the consequences of a provision that restricts evidence that could be necessary to prevent a wrongful conviction. This paper seeks to consider the constitutional debates surrounding section 227 and to determine whether, to the extent that they may prove to be constitutionally problematic, the potential constitutional challenges are justifiable under a limitations analysis. It is impossible to engage with the constitutionality of section 227 without first discussing the rationale behind rape shield laws in general. The structure of the paper is therefore as follows: firstly, the history and purpose of rape shield laws will be investigated, and secondly, the history of section 227 under South African law will be discussed.

This dissertation deals with the constitutionality of the onus of proof in cases where mental illness is averred. Insanity refers to the legally defined state of mind and not to a specific psychological disorder. Mental illness is one of the factors recognised by South African law which negates criminal responsibility. The law recognises that persons suffering from insanity cannot be sanctioned in the same way as sane offenders. The law applicable in South Africa today with regards to the insanity defence is contained in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the M’Naghten rules and irresistible impulse test that appeared in South African Law nearly a century before. Section 78(1) of the Criminal Procedure Act stipulates that in order to not be responsible for an alleged crime the accused must have committed an act which constitutes an offence and must at the time of said commission have suffered from a mental illness or mental defect which rendered him incapable of (a) appreciating the wrongfulness of his actions; or (b) acting in accordance with an appreciation of the wrongfulness of his actions. Due to legislative amendments any party who raises mental illness as a defence is supposed to prove on a balance of probabilities that the accused was mentally ill at the time of the commission of the offence. This constitutes a departure from the normal rules of evidence which requires the state to prove the accused’s guilt beyond a reasonable doubt. The test for insanity is therefore a mixed one in which expert testimony is vital. Psychologists as well as psychiatrists play an important role in assisting the court, by way of expert testimony, to determine the mental state of offenders. Lawyers and mental health professionals often don’t see eye to eye as a result of the differences in interpretation and application of mental illness in the respective professions. The various difficulties faced by the defence, as a dependant of the professions, is explored. A comparative study of the laws relating to the insanity defence in English Law and in the United States of America is conducted. These findings are contrasted to the current South African legal position. The selected jurisdictions share a common thread in that the insanity defence in these countries all originated from the M’Naghten rules and was subsequently modified by each. In the English law system, a general insanity defence is non-existent today. The strict M’Naghten rules are still applied as the test for insanity and seldom evoked by accused persons. In the United States of America the test for insanity differs from state to state but all have returned to the stricter English approach despite a number of different tests being developed and applied during the years since the defence’s existence. The presumption of innocence, which means that the burden of establishing the elements of criminal liability lies with the prosecution and is a fundamental aspect of the South African criminal justice system. In all three of the legal systems the burden of proof has always been placed on the defence to prove its case on a balance of probabilities. Following the legislative amendments in South African law, in section 78 (1) (A) and (B), this position has now changed to he who alleges must prove. Whether it constitutes unfair discrimination on the mentally ill accused to burden him with this higher onus than in normal defences, and whether it will survive constitutional scrutiny, concludes the study. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted

Although s 9 of the new Constitution 1 guarantees the right to life, there is no express provision which abolishes the death sentence. Whereas in the past the death sentence could only be avoided by the exercise of judicial discretion or political and public pressure, its imposition will now have to be entirely re-evaluated. Not only are all the laws of the country subject to the new Constitution, 2 but so too a Constitutional Court will be operational which will have the power to test the constitutionality of any such laws. By looking at the standards and relevant issues which are considered to define the constitutionality of the death sentence internationally, reviewing current application of the death sentence in South Africa, drawing comparisons, and by studying the problems unique to the South African situation, it will be the aim of this dissertation to determine how the death sentence will fare under a Constitutional Court. / Criminal & Procedural Law / LL. M.

Although s 9 of the new Constitution 1 guarantees the right to life, there is no express provision which abolishes the death sentence. Whereas in the past the death sentence could only be avoided by the exercise of judicial discretion or political and public pressure, its imposition will now have to be entirely re-evaluated. Not only are all the laws of the country subject to the new Constitution, 2 but so too a Constitutional Court will be operational which will have the power to test the constitutionality of any such laws. By looking at the standards and relevant issues which are considered to define the constitutionality of the death sentence internationally, reviewing current application of the death sentence in South Africa, drawing comparisons, and by studying the problems unique to the South African situation, it will be the aim of this dissertation to determine how the death sentence will fare under a Constitutional Court. / Criminal and Procedural Law / LL. M.

Mental illness that affects an accused’s fitness to stand trial is an ill-explored topic in the South African criminal justice system. The necessity to explore this topic is motivated by the increasing number of persons with mental illness moving into the criminal justice systems in South Africa, Canada, and the United States of America. An accused’s fitness to stand trial is assessed once concern about his ability to follow the proceedings, or give proper instructions to his legal representative, is in doubt. The assessment is conducted in the forensic system where the vastly different fields of law and psychiatry meet. The South African forensic system is plagued with resources and skills shortages. These inadequacies cause delays in resolving pre-trial issues for an accused in respect of whom fitness is at issue. The accused is oftentimes detained in a correctional facility awaiting fitness assessment for anything between three months to two years. Generally, detention in a correctional facility has a negative effect on the mental state of a person with a mental illness. The logistics of fitness assessments differ between the three jurisdictions referred to above. However, the threshold for fitness in these jurisdictions is relatively low, with the result that the majority of accused persons sent for fitness assessments are found fit to stand trial. Such a finding does not imply that the accused is not mentally ill; it simply means that the illness does not affect his understanding of the court proceedings and that it does not influence his ability to communicate with his legal representative. An accused with a serious mental illness such as schizophrenia or major depression can, for example, be found fit to stand trial. After a fitness assessment, a court may either find an accused fit to stand trial or unfit to stand trial. The fact that many persons found fit to stand trial have a mental illness suggests that there is a third category on the fitness continuum that must be acknowledged, namely, fit but mentally ill accused persons. No alternatives to traditional prosecution currently exist in South Africa for this third group of accused persons despite the fact that their situation in the criminal justice system calls for a therapeutic response. The South African legislative framework that regulates fitness assessments and the processes associated therewith are not without challenges. The assessment practices have recently been under scrutiny by the Constitutional court, which judgment changed the position for the accused found unfit to stand trial. The position of the fit but mentally ill accused remains unregulated. The Canadian and American criminal justice systems have implemented diversion programmes for fit but mentally ill accused persons in the form of Mental Health Courts. The underlying principle of a Mental Health Court is therapeutic jurisprudence. Therapeutic jurisprudence evaluates the impact of the law on those in conflict with it. It promotes the inclusion of expertise from other disciplines to improve the effectiveness of the law in a particular set of circumstances. Many South African scholars acknowledge the need for mental health expertise in the criminal justice system, and suggestions have been made for the diversion of mentally ill accused persons charged with minor offences. Those above notwithstanding, no formal diversion programmes exist in South Africa for the fit but mentally ill accused. This research investigates the Mental Health Court as a therapeutic response to the mentally ill accused in the South African criminal justice system. The Mental Health Court models as employed in Canada and the United States of America are studied to identify elements thereof that can be employed in the South African context to provide an effective alternative to traditional prosecution for the mentally ill accused. The Toronto Mental Health Court is studied in the Canadian context as a court that is not a diversion programme as such but has a diversion component attached to it. Diversion in Canada is reserved for those charged with less serious offences, and only these accused persons are allowed into the diversion component of the Mental Health Court. However, the Canadian Mental Health Court assists those who do not qualify for diversion but who need the specialised skills of the Mental Health Court for purposes of, for example, a bail application. The Brooklyn Mental Health Court in the United States of America is investigated as a model that constitutes a complete diversion programme and considers diversion of accused persons charged with more serious offences. The unique structure and procedure of each of these Mental Health Courts are investigated with due consideration to the eligibility criteria of each and the sanctions employed for non-compliance of the court-monitored treatment programmes. Further, the successes and challenges of each model are highlighted. Finally, a proposal is made for a Mental Health Court model mindful of the uniquely South African factors that have to be taken into account when building such a model. Amendments to the existing legislative framework are proposed to incorporate a Mental Health Court as a therapeutic response to mentally ill accused persons in the South African criminal justice system. / Criminal and Procedural Law

The State as the representative of the victims of crime is expected to protect those vulnarable group of people with due regard to the rights of the perpetrators’s of crime. It is imperative that the law of general application which is aimed at protecting victims of crime, be sufficiently effective to protect the victims. The Criminal Procedure Act 51 of 1977 is aimed at assisting the police to conduct pre-trial criminal procedure in order to bring perpetrators of crime to book. Sections 36A, 36B, 36C and 37 (both previous and as amended) of the Criminal Procedure Act including chapter 5A of the South African Police Act, 1995 are explored in this dissertation. This dissertation examines the areas in the Criminal Procedure Act that make it problematic for the police to conduct efficient and effective crime detection through the ascertainment of bodily features of the suspected or accused person. The law in three foreign jurisdictions relating to this topic are investigated and compared in order to make recommendations and suggest possible solutions. / Criminal & Procedural Law / LL.M.

The State as the representative of the victims of crime is expected to protect those vulnarable group of people with due regard to the rights of the perpetrators’s of crime. It is imperative that the law of general application which is aimed at protecting victims of crime, be sufficiently effective to protect the victims. The Criminal Procedure Act 51 of 1977 is aimed at assisting the police to conduct pre-trial criminal procedure in order to bring perpetrators of crime to book. Sections 36A, 36B, 36C and 37 (both previous and as amended) of the Criminal Procedure Act including chapter 5A of the South African Police Act, 1995 are explored in this dissertation. This dissertation examines the areas in the Criminal Procedure Act that make it problematic for the police to conduct efficient and effective crime detection through the ascertainment of bodily features of the suspected or accused person. The law in three foreign jurisdictions relating to this topic are investigated and compared in order to make recommendations and suggest possible solutions. / Criminal and Procedural Law / LL.M.