This study addresses the principles applicable to criminal capacity in the South African legal system. Focus is drawn to non-pathological criminal incapacity as a complete defence to a criminal charge. Non-pathological criminal incapacity can be described as the temporary inability on the part of the perpetrator to appreciate the wrongfulness of the conduct and/or to act in accordance with this appreciation. This mental inability is due to factors which cannot be ascribed to a pathological condition or mental illness. The study further investigates the application of the subjective and objective test as criteria for the defence of provocation and indicates the preferred test. The study also includes a discussion of the following aspects: • The study further investigates the application of the subjective and objective test as criteria for the defence of provocation Non-pathological criminal incapacity distinguished from pathological criminal incapacity • Non-pathological criminal incapacity distinguished from "sane" automatism • The role of amnesia in considering criminal capacity • The role of the expert witness in considering non-pathological criminal incapacity • Private defence versus battered woman syndrome and cumulative provocation • Criminal capacity and sentence. In the South African law the defence of non-pathological criminal incapacity was considered on numerous occasions by the High and Appeal Court, though mostly unsuccessful. It is also clear that the South African courts confuse the issue and fail to differentiate between the defences of non-pathological criminal incapacity and "sane" automatism. The study indicates that the two defences, though different, coincide. The South African courts increasingly raised the standard and requirements for a successful plea in an attempt to confine the popularity of the "new" defence of non-pathological criminal incapacity. A comparative study of the English and Canadian law indicates that provocation is only considered as a partial defence to murder, and only to reduce murder to manslaughter. The reasoning behind this was to evade the compulsory sentence of life imprisonment for murder by substituting it with a conviction of manslaughter where life imprisonment is not a compulsory sentence. The central question raised in this study is whether non-pathological criminal incapacity be a qualified and complete defence to any criminal charge in the South African law. Finally the study is concluded with a crisp summary of every preceding chapter and valuable recommendations stemming from the research are made. / Dissertation (LLM (Public Law))--University of Pretoria, 2008. / Public Law / unrestricted

The current study addresses the fundamental role of expert evidence advanced in support of the defence of criminal incapacity. It was endeavoured to illustrate that the scientific entities of forensic psychiatry and psychology fulfil an essential and pivotal role in establishing and assessing the defence of criminal incapacity. The study proposed to illustrate the interaction between the professions of law and medicine on the backdrop of the defence of criminal incapacity. Recommendations were provided with the aim of enhancing the dialogue between the professions of law and medicine when the defence of criminal incapacity falls to be assessed. The study was approached from a dual dimensional perspective illustrating both the need for mental health experts as well as the need for adequately trained and experienced mental health experts to provide expert testimony as to an accused’s mental state when the defence of criminal incapacity is raised. The motivation for the current study is enumerated and the concepts of “criminal capacity”, “non-pathological criminal incapacity”, “pathological criminal incapacity” and “expert evidence” are, amongst others, conceptualized. It is indicated that expert evidence plays an essential role not only in cases where pathological criminal incapacity, or put differently, criminal incapacity attributable to mental illness or mental defect is raised, but also in instances where non-pathological criminal incapacity is raised as a defence. The role of the mental health expert is addressed with reference to battered woman syndrome evidence advanced in support of the defence of non-pathological criminal incapacity. It is illustrated that the defence of non-pathological criminal incapacity is in need of reform. It is in addition illustrated that legislative reform is essential to establish the defence of non-pathological criminal incapacity and to create legal certainty. The inconsistent approach in the application of expert evidence to the defence of criminal incapacity is emphasized with specific focus on the semantic distinction between the defences of non-pathological criminal incapacity and pathological criminal incapacity. The role and application of the DSM-IV in the definition and assessment of mental disorders is addressed in conjunction with the various obstacles associated with the application of the DSM-IV to the defence of criminal incapacity. The nature and scope of the basic rules of expert evidence as they would apply to mental health professionals acting as expert witnesses in support of the defence of criminal incapacity are addressed. The assessment of the probative value of expert evidence is addressed and the complexities associated therewith are espoused. The numerous ethical dilemmas faced by mental health experts are illustrated and recommendations are provided aimed at eliminating these dilemmas. A comparative study of selected principles pertaining to expert evidence in the United States of America is embarked upon to illustrate the need for a codification of the rules of expert evidence as well as effective guidelines aimed at enhancing the scientific reliability and validity of expert evidence advanced in support of the defence of criminal incapacity. Finally, conclusions are drawn and motivated recommendations are made. Law reform is proposed in the form of draft proposals for legislative reform in respect of the defence of criminal incapacity as well as a draft ethical code of conduct for mental health experts providing expert testimony in cases where the defence of criminal incapacity is raised. / Thesis (LLD)--University of Pretoria, 2011. / Public Law / unrestricted

This dissertation critically investigates the current framework for psycholegal assessment of accused persons who are suspected or alleged to have lacked criminal incapacity at the time of committing an offence. This system must function as effectively as possible to ensure the interests of justice and the community are best served. Issues that impact how effectively the criminal justice system collaborates with psychologists and psychiatrists, who act as expert forensic mental health assessors, are identified and recommendations are made accordingly. The study first examines the theoretical base regarding the terminology surrounding criminal capacity, mental illness and automatism, with regard to how the understanding of concepts differ in law and psychology and psychiatry and how this negatively affects the process of assessment. The study then investigates the constitutional rights of accused persons admitted for observation, the effect this has on the patient and legal process, the accuracy and reliability of the diagnosis and the admissibility of expert evidence. Next a comparative study is made utilising English Law as a tool for analysis. The main findings are that lack of understanding and clarity are the main issues that hinder the collaboration between the legal and mental health care professions and that this may be remedied by a system of registration and education for forensic psycholegal assessors. An alternate and concurrent method of direct referral is also suggested as it may relieve some of the strain on the current system. / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

In this project the various International Instruments, namely the United Nations Convention of the Rights of the Child; 1989, the Beijing Rules and the African Charter, relating to the guidelines of the establishment of a minimum age for criminal capacity are furnished. The developments regarding the issue of criminal capacity since 1998 in Australia, the United Kingdom and Hong Kong are highlighted. The historical position and the current position in South African law with regard to the issue of criminal capacity are discussed as well as the implementation thereof by our courts. The statistics on children under 14 years in prison over the past five years are furnished. The introduction of the Child Justice Bill, 2002 by Parliament and the deliberations following the introduction, focusing on the issue of criminal capacity is highlighted. The proposed provisions of the Child Justice Bill, 49 of 2002 codifying the present common law presumptions and the raising of the minimum age for criminal capacity are furnished. The evaluation of criminal capacity and the important factors to be assessed are discussed as provided for in the Child Justice Bill, 49 of 2002. A practical illustration of a case where the criminal capacity of a child offender was considered by the court is, discussed and other important developmental factors that should also be taken into consideration by the court are identified and discussed. Important issues relating to criminal capacity, namely, time and number of assessments, testimonial competency of the child offender, evolving capacities and age determination are discussed and possible problems identified and some solutions offered. The research included an 11-question questionnaire to various professionals working in field of child justice regarding the issue of criminal capacity and the evaluation thereof. / Criminal and Procedural law / D.Litt. et Phil. (Criminology)

The aim of this explorative study is to establish if psychiatric disorders influence the criminal capacity of child offenders. A qualitative approach was adopted in the study to develop an in-depth understanding of the issues pertaining to criminal capacity assessments for child offenders with psychiatric disorders. The risks associated with various psychiatric disorders in relation to childhood criminality, and the methods that are used to deal with child offenders who suffer from psychiatric disorders, were also explored. The data collection tool for this study was a semi-structured interview schedule. Telephonic and face-to-face interviews were conducted with child justice and mental health experts from four provinces in South Africa, namely, KwaZulu-Natal, Gauteng, Eastern Cape and Western Cape. These experts included psychiatrists, psychologists, social workers, academic professors of law, a criminologist and an advocate. Snowball sampling was employed and although this is a pure qualitative study, the open coding, axial coding and selective coding process from the grounded theory was applied to analyse and interpret the data. The findings from this study indicate that psychiatric disorders are a risk factor associated with the causation of criminal behaviour. A high prevalence of psychiatric disorders, such as intellectual disability, learning disorder, attention deficit hyperactivity disorder, oppositional defiant disorder and conduct disorder, were generally found in children in conflict with the law. The influence and consequences of these psychiatric disorders, in conjunction with environmental and societal factors, were found to influence criminal behaviour and were highlighted as factors that ought to be taken into consideration when determining the criminal capacity of a child who is in conflict with the law. Findings from the study identified that adequate recognition was not granted to the influence of a psychiatric disorder in the assessment of a child‟s criminal capacity. It was established that, in the criminal capacity assessment, the emphasis should not be on the psychiatric disorder per se, but on the effect that the disorder and associated symptoms may have on the child‟s ability to distinguish between the wrongfulness of their actions and to act in accordance with this understanding. Operational challenges and ambiguities identified in the legislative framework pertaining to child offenders with psychiatric disorders were found to negatively influence criminal capacity assessments for children in conflict with the law. The lack of services available to child offenders with psychiatric disorders, as well as child offenders without psychiatric disorders, was found to hamper the best interest of the children in conflict with the law. Lastly, legislative and service recommendations for good practice to deal with child offenders with psychiatric disorder were identified by the experts. / Criminology and Security Science / M.A. (Criminology)

In this project the various International Instruments, namely the United Nations Convention of the Rights of the Child; 1989, the Beijing Rules and the African Charter, relating to the guidelines of the establishment of a minimum age for criminal capacity are furnished. The developments regarding the issue of criminal capacity since 1998 in Australia, the United Kingdom and Hong Kong are highlighted. The historical position and the current position in South African law with regard to the issue of criminal capacity are discussed as well as the implementation thereof by our courts. The statistics on children under 14 years in prison over the past five years are furnished. The introduction of the Child Justice Bill, 2002 by Parliament and the deliberations following the introduction, focusing on the issue of criminal capacity is highlighted. The proposed provisions of the Child Justice Bill, 49 of 2002 codifying the present common law presumptions and the raising of the minimum age for criminal capacity are furnished. The evaluation of criminal capacity and the important factors to be assessed are discussed as provided for in the Child Justice Bill, 49 of 2002. A practical illustration of a case where the criminal capacity of a child offender was considered by the court is, discussed and other important developmental factors that should also be taken into consideration by the court are identified and discussed. Important issues relating to criminal capacity, namely, time and number of assessments, testimonial competency of the child offender, evolving capacities and age determination are discussed and possible problems identified and some solutions offered. The research included an 11-question questionnaire to various professionals working in field of child justice regarding the issue of criminal capacity and the evaluation thereof. / Criminal and Procedural law / D.Litt. et Phil. (Criminology)

This study explores and describes the professional role of the Criminologist in South Africa. National and international research and personal practice are used to demonstrate the role of the South African Criminologist. A qualitative research design supports the exploratory nature of this study. The areas of focus are veracity assessing, criminogenesis, assessment of juveniles, assisting victims of crime through debriefing and compiling victim impact statements and compiling pre-sentence reports. Each of these areas rely on the expert knowledge of the Criminologist and is accompanied by real life case study which is preceded by theoretical explanations and research findings. The research also highlights the quest for professionalising Criminology in South Africa by presenting and analysing the formal application for recognition. / Criminology / D.Litt. et Phil. (Criminology)

This study explores and describes the professional role of the Criminologist in South Africa. National and international research and personal practice are used to demonstrate the role of the South African Criminologist. A qualitative research design supports the exploratory nature of this study. The areas of focus are veracity assessing, criminogenesis, assessment of juveniles, assisting victims of crime through debriefing and compiling victim impact statements and compiling pre-sentence reports. Each of these areas rely on the expert knowledge of the Criminologist and is accompanied by real life case study which is preceded by theoretical explanations and research findings. The research also highlights the quest for professionalising Criminology in South Africa by presenting and analysing the formal application for recognition. / Criminology and Security Science / D.Litt. et Phil. (Criminology)

Magister Legum - LLM / The following thesis investigates the MACR in African Legal Systems. The MACR is the youngest age at which children in conflict with the law find themselves caught up in the harsh realities of the criminal justice system. Up until recently, debates around fixing a MACR had been successfully side-stepped since the adoption of the UNCRC in 1989. The UNCRC has provided for human rights for children on a global scale while the ACRWC provides for such rights regionally. Contracting States Parties to these treaties agree that there needs to be a MACR in place and have adopted a childrens rights-based framework for reviewing their current child laws, policies and practices in accordance with the minimum standards provided. They do not however, agree on what the fixed minimum age should be. / South Africa

This study evaluates the constitutionality of section 78(1B) of the Criminal Procedure Act 51 of 1977 (CPA), which places the burden of proving criminal capacity on the party who raises the issue, against section 9 of the Constitution of the Republic of South Africa, 1996 (CRSA). In a legal system such as ours, that has a high regard for equality, any form of unequal treatment must be scrutinised, assessed and, if found to be unjust, rooted out. Even more so where the unequal treatment affects a marginalised minority group such as the mentally disabled. This study weighs section 78(1B) against section 9(1) of the CRSA. It also weighs the section against section 9(3) of the CRSA. Attempts are made to justify possible infringements according to section 36 of the CRSA. An appropriate remedy is then ascertained. This study also provides the historical development of section 78(1B) of the CPA – both in the common law and statute. This study furthermore provides original guidelines and principles in assessing expert evidence where criminal capacity is placed in dispute due to a mental illness or defect of the accused. The main findings are that section 78(1B) infringes on both section 9(1) and section 9(3), that it cannot be justified in terms of section 36 of the CRSA and that the appropriate remedy is the striking out of the whole section from the CPA. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted