Text in Afrikaans / Weens die gebrek aan wetenskaplike bewerking van die legaliteitsbeginsel in die strafprosesreg, moet leiding gesoek word by leerstukke en beginsels van die staatsreg wat gemoeid is met die onderdaan-staatsgesagproblematiek (rule of law, die regstaat, due process of law en menseregte) asook by die legaliteitsbeginsel in die strafreg. 'n Leerstelling wat gemeenskaplik aan al hierdie leerstukke en beginsels is, is dat willekeurige owerheidsgesagsuitoefening teenoor die regsonderdaan in bedwang gehou moet word deur reelgebondenheid. Daar moet veral gelet word of daar blyke is van ontwikkeling vanaf die formele aspek (die beperkte eis dat daar 'n regsbasis vir owerheidsoptrede moet wees) na 'n materiele inhoud (of die betrokke leerstuk ingestel is op waardes wat aanduiding kan gee van 'n besondere geregtigheidsopvatting). Die legaliteitsbeginsel in sy basiese verskyningsvorm vereis dat owerheidsoptrede moet voldoen aan voorafbepaalde en vasstaande regsvoorskrifte; met wetmatigheid as hoofkomponent van hierdie vorm van legaliteit, is die onderskeidende kenmerk daarvan legalisme. In sy omvattende gedaante sluit die legaliteitsbeginsel die meeste van die attribute van die engere verskyningsvorm in, maar stel verdere vereistes: dit verg dat owerheidsoptrede moet voldoen aan voorafbepaalde, vasstaande en regverdige voorskrifte wat behoorlik verorden is en volgens 'n vaste prosedure uitgeoefen word - behalwe in daardie gevalle waar owerheidsoptrede, in die afwesigheid van uitvoerige regsreeling deur toepaslike norme, gestruktureerde en gekontroleerde diskresieuitoefening noodsaak. Daar word ter oorweging gegee dat die strafprosessuele regte van die individu die materiele inhoud van die legaliteitsbeginsel in die strafprosesreg vorm. Die meeste van hierdie regte is vervat in die Grondwet van die Republiek van Suid-Afrika 200 van 1993. Weens die eise van geregtigheid in die individuele geval, word diskresie-uitoefening deur owerheidsagenture soos die polisie en aanklaer asook regterlike beamptes deur die legaliteitsbeginsel geduld, maar diskresie-aanwending moet gestroop word tot die noodsaaklike, aan beperkings onderhewig gestel word en ook gekontroleer en gestruktureer word. Met die koms van die nuwe grondwetlike bedeling en die instelling van 'n Konstitusionele Hof kan stellig verwag word dat die strafprosessuele regte verder verfyn sal word en dat die toekoms nuwe insigte op die gebied van strafprosesregtelike legaliteit sal bring. / Due to the lack of scientific treatment of the principle of legality in criminal procedure, guidance must be sought from constitutional law doctrines that address the problematic inter-relation individual vis-a-vis state authority (rule of law, the Rechtsstaat, due process of law and human rights) and from the principle of legality in criminal law. A tenet shared by these doctrines, is that the arbitrary exercise of executive power over the individual should be restrained through adherence to rules. Whether development from the formal aspect (that a legal basis for executive action is required) to a substantive content (whether the doctrine concerned is committed to values reflecting a specific concept of justice) occurs, is examined. Basic legality requires that state action comply with rules that are certain and previously formulated; with adherence to rules ("wetmatigheid") as its main component, its distinguishing feature is legalism. In its comprehensive form, the principle of legality includes most of the attributes of the basic form, but makes further demands: executive action must conform to rules that are certain, already formulated and just, properly ordained and executed in accordance with a fixed procedure - except in those cases where executive action, in the absence of detailed regulation by legal norms, necessitates the structured and controlled exercise of discretion. It is submitted that the procedural rights of the citizen constitute the material content of the principle of legality in criminal procedure. Most of these rights have been included in the Constitution of the Republic of South Africa Act 200 of 1993. Because of the demands of justice in the individual instance, the exercise of discretion by the agencies of the state, the police and prosecution, as well as judicial officers, is tolerated by the principle of legality: provided that this exercise of discretion is limited to what is absolutely necessary, and is restrained, controlled and structured. With the advent of the new constitutional dispensation and the institution of the Constitutional Court, it may be expected that procedural rights will be further emended and that some new perceptions in the field of legality in criminal procedure are imminent. / Criminal & Procedural Law / LL. D.

Text in Afrikaans / Weens die gebrek aan wetenskaplike bewerking van die legaliteitsbeginsel in die strafprosesreg, moet leiding gesoek word by leerstukke en beginsels van die staatsreg wat gemoeid is met die onderdaan-staatsgesagproblematiek (rule of law, die regstaat, due process of law en menseregte) asook by die legaliteitsbeginsel in die strafreg. 'n Leerstelling wat gemeenskaplik aan al hierdie leerstukke en beginsels is, is dat willekeurige owerheidsgesagsuitoefening teenoor die regsonderdaan in bedwang gehou moet word deur reelgebondenheid. Daar moet veral gelet word of daar blyke is van ontwikkeling vanaf die formele aspek (die beperkte eis dat daar 'n regsbasis vir owerheidsoptrede moet wees) na 'n materiele inhoud (of die betrokke leerstuk ingestel is op waardes wat aanduiding kan gee van 'n besondere geregtigheidsopvatting). Die legaliteitsbeginsel in sy basiese verskyningsvorm vereis dat owerheidsoptrede moet voldoen aan voorafbepaalde en vasstaande regsvoorskrifte; met wetmatigheid as hoofkomponent van hierdie vorm van legaliteit, is die onderskeidende kenmerk daarvan legalisme. In sy omvattende gedaante sluit die legaliteitsbeginsel die meeste van die attribute van die engere verskyningsvorm in, maar stel verdere vereistes: dit verg dat owerheidsoptrede moet voldoen aan voorafbepaalde, vasstaande en regverdige voorskrifte wat behoorlik verorden is en volgens 'n vaste prosedure uitgeoefen word - behalwe in daardie gevalle waar owerheidsoptrede, in die afwesigheid van uitvoerige regsreeling deur toepaslike norme, gestruktureerde en gekontroleerde diskresieuitoefening noodsaak. Daar word ter oorweging gegee dat die strafprosessuele regte van die individu die materiele inhoud van die legaliteitsbeginsel in die strafprosesreg vorm. Die meeste van hierdie regte is vervat in die Grondwet van die Republiek van Suid-Afrika 200 van 1993. Weens die eise van geregtigheid in die individuele geval, word diskresie-uitoefening deur owerheidsagenture soos die polisie en aanklaer asook regterlike beamptes deur die legaliteitsbeginsel geduld, maar diskresie-aanwending moet gestroop word tot die noodsaaklike, aan beperkings onderhewig gestel word en ook gekontroleer en gestruktureer word. Met die koms van die nuwe grondwetlike bedeling en die instelling van 'n Konstitusionele Hof kan stellig verwag word dat die strafprosessuele regte verder verfyn sal word en dat die toekoms nuwe insigte op die gebied van strafprosesregtelike legaliteit sal bring. / Due to the lack of scientific treatment of the principle of legality in criminal procedure, guidance must be sought from constitutional law doctrines that address the problematic inter-relation individual vis-a-vis state authority (rule of law, the Rechtsstaat, due process of law and human rights) and from the principle of legality in criminal law. A tenet shared by these doctrines, is that the arbitrary exercise of executive power over the individual should be restrained through adherence to rules. Whether development from the formal aspect (that a legal basis for executive action is required) to a substantive content (whether the doctrine concerned is committed to values reflecting a specific concept of justice) occurs, is examined. Basic legality requires that state action comply with rules that are certain and previously formulated; with adherence to rules ("wetmatigheid") as its main component, its distinguishing feature is legalism. In its comprehensive form, the principle of legality includes most of the attributes of the basic form, but makes further demands: executive action must conform to rules that are certain, already formulated and just, properly ordained and executed in accordance with a fixed procedure - except in those cases where executive action, in the absence of detailed regulation by legal norms, necessitates the structured and controlled exercise of discretion. It is submitted that the procedural rights of the citizen constitute the material content of the principle of legality in criminal procedure. Most of these rights have been included in the Constitution of the Republic of South Africa Act 200 of 1993. Because of the demands of justice in the individual instance, the exercise of discretion by the agencies of the state, the police and prosecution, as well as judicial officers, is tolerated by the principle of legality: provided that this exercise of discretion is limited to what is absolutely necessary, and is restrained, controlled and structured. With the advent of the new constitutional dispensation and the institution of the Constitutional Court, it may be expected that procedural rights will be further emended and that some new perceptions in the field of legality in criminal procedure are imminent. / Criminal and Procedural Law / LL. D.

The process of extradition is a vital component of International Criminal Law as a means of ensuring the suppression and prevention of international crimes. It is the internationally accepted method used by states to surrender an offender back to the state where the alleged offence was committed so that such offender can be tried and punished. Without such process, and with the ease of modern global travel, offenders would, in all likelihood be able to escape prosecution and punishment. Most organized democratic societies recognize that the suppression of crime is necessary for peace and order in society and that extradition is an effective tool to be used to bring to justice a fugitive attempting to evade the law by fleeing to another country. What follows is a discussion, firstly on the theory of extradition and secondly on the effect that human rights has had on the law of extradition. The theory of extradition involves an analysis of extradition from its ancient roots to its position in society today. With regard to extradition in South Africa, reference is made to the various periods of the country’s history. The colonial era before South Africa acquired Republican status in 1961 is referred to in order to establish a basis for the present law of extradition in South Africa. The period during the apartheid era after achieving Republican status in 1961 is discussed in order to show how and why South Africa moved away from its common law roots based on English Law. This era is also of importance as it led to the introduction of the present Extradition Act 67 of 1962. Finally the current position spanning from 1994 to the law as it stands in South Africa today, as influenced by the introduction of Constitutional law, is examined. The rule on non-inquiry is also examined in order to compare the traditional approach by states, where state sovereignty was of paramount importance, with the modern trend of emphasis being placed on fundamental human rights. The methods in terms of which extradition is accomplished, both in South Africa and internationally is also discussed. Such reference to the theory and nature of extradition is done to provide general background on the complex issue to be discussed. The crux of the treatise relates to the impact that the rise in status of fundamental human rights has had on the extradition process. Reference will be made to aspects relating to the protection of the offender’s procedural rights as well as to the protection of the individuals right to life, dignity and bodily integrity. Such examination will refer to the position in South African law as well as the position on the international front. Attention is given to developments in case law as well as to how the courts approach the tension between extradition and human rights both locally and internationally. Finally, in conclusion it is submitted that the extradition process is the most effective procedure available to return an offender to the state seeking his prosecution. The process has however, in modern times adapted to uphold the rights of the offender whose return is requested. This can be seen from the provisions included in recent treaties and conventions, most notably the European Convention on Extradition to which South Africa became a party in 2003. Extradition is clearly concerned with the balancing of the offender’s human rights and the need for effective enforcement of criminal law.

Text in Afrikaans / Beskermi ng van fundamente le mense- en konst itus i one le regte het moderne regstelsels tot herbesinning oor tradisionele bewysregreels rakende die toelaatbaarheid van getuienis aangaande verklarings van 'n beskuldigde en die privilegie teen selfinkriminasie gedwing. Om die omvang van die stroming op die kwessie van getuienis oor aanwysings wat op 'n onvrywillige of onbehoorlike wyse bekom is vas te stel, word 'n analise gedoen van artikel 218 van die Strafproseswet, wat fokus op die toelaatbaarheid van getuienis oor aanwysings en getuienis wat as gevolg van aanwysings verkry is. Die Appelhofbeslissing in S v Sheehama oor die toelaatbaarheid van getuienis omtrent gedwonge aanwysings, word gesien as die beliggaming van 'n nuwe filosofie rakende die beskuldigde se privilegie teen selfinkriminasie. Die gevolgtrekking word gemaak dat die bepalings van artikel 218(2) onbillik is, 'n skending van die beskuldigde se privilegie teen selfinkriminasie tot gevolg het en herroep moet word. Voorstelle vir regshervorming word in hierdie verband gemaak. / The protection of fundamenta 1 human and con st itut i ona 1 rights has caused modern legal systems to re-evaluate traditional rules of evidence regarding the admissibility of evidence concerning statements of an accused and the privilege against self-incrimination. To determine the extent of such a re-evaluation on evidence of paintings-out which are involuntarily or improperly obtained, an analysis of section 218 of the Criminal Procedure Act is undertaken. It focuses on the admissibility of evidence of paintings-out and evidence obtained in consequence of pointingsout. The decision of the Appellate Division in S v Sheehama on the admissibility of evidence of pointing-outs, obtained by means of compulsion, is seen as an embodiment of a new philosophy towards an accused's privilege against nondiscrimination. It is concluded that the provisions of section 218(2) are unfair, infringe on an accused's privilege against self-incrimination and should be repealed. Proposals for law reform are made in this regard. / Criminology and Security Science / LL.M.

This thesis dealt with the constitutionality of the provisions of the Criminal Procedure Amendment Act, 2003 (Act 42 of 2003), pertaining to the leave requirement and petition procedures in respect of appeals against conviction, sentence or orders of the lower courts.

Private defence is the civilized remnant of the ancient system of private vengeance as redress for wrong done. The Romans, in permitting self-help formulated the principle moderatio inculpatae (moderation in self-defence) which the European jurists later relied upon to develop a coherent doctrine of private defence. Certain types of intentional killings were no longer regarded as unlawful and therefore are not punished as murder. South African recognizes that killing is justifiable and therefore not murder. Despite the sound rationale underlying the defence, namely the upholding of justice theory where people acting in private defence perform acts where they assist in upholding the legal order, and despite the fact that the defence is established in both criminal law legal theory and practice, there are threshold problems with this rationale which has been subject to much academic criticism. Such criticism must be seen in the context of the wider debate surrounding the circumstances in which battered women kill their abusers - normally in circumstances where the threat is not imminent and therefore the need to uphold justice is not necessary. The purpose of this enquiry is to examine the development and functioning of the defence and more particularly to do so in light of a comparison with the means currently utilized to criminalize conduct falling outside the bounds of self-defence: one of the parent systems of South African law, namely English law and the United States, where battered woman syndrome originated and a profound influence on the way in which the elements of the defence are interpreted in that jurisdiction. For instance, in American law subjective tests for self-defence have been developed such as the particularizing standard. This standard asks whether a reasonable person with the accused’s particular non-universal characteristics would have both perceived the situation as the accused perceived it and would have reacted to that perception by committing the accused’s self-defensive act. If the answer is yes, then the act is considered reasonable. It assumes that individuals freely choose how to perceive and respond to a threatening situation but also acknowledge that certain kinds of nonuniversal characteristics (such as battered woman syndrome) exercise such a powerful causal force on individuals perceptions and actions that it would violate the voluntary act requirement when holding that individual who possess such a characteristic to a standard of conduct that does not take that characteristic into account. The study concludes with an assessment of the form the defence ought to take. In South African law the defence consists of the conditions relating to an attack which includes: an attack, and protected interest and the attack must be unlawful. In respect of the conditions relating to the defence, the defence must be reasonably necessary to avert the attack and the defence must be directed against the attacker. Aspects of these elements have proved to be controversial. In particular, the condition of reasonably necessary to avert the attack has been called into question. Furthermore the requirement of imminence has been rendered especially controversial especially when viewed from the battered woman’s perspective where battered woman syndrome plays a role i.e. the woman’s internal makeup having an influence on the way she views the situation as opposed to an objective test is used to establish if the threat was imminent. While the English and American law elements of the duty to retreat, proportionality and reasonableness approximate the equivalent condition of reasonably necessary to avert the attack, the focal point of this defence in these jurisdictions has similarly been the imminence requirement and the test utilized for self-defence i.e. objective or subjective standard. Prior to evaluating the utility of these elements, the various rationales posited as a justification for the defence will be examined. It is submitted that while various rationales have been posited to form the basis of selfdefence, the autonomy theory (narrowly circumscribed) should be followed in South African law and that the traditional elements for self-defence should remain in force. Regarding the requirement that the attack be reasonably necessary, it is submitted that the traditional mechanism for distinguishing justified from unjustified self-defensive acts should remain an objective test. This is so because by taking account of the knowledge the defender has of her attacker the legal requirements of private defence will eventually be equated with those required for putative self-defence. If putative selfdefence goes to the issue of culpability, which is seen as a particular mental attitude or state of mind - South African law will be evincing a move toward a normative concept of fault. Such an approach has not proved unproblematic in South African law. Both early and modern common law as well as modern case law has expounded a coherent statement of the elements of self-defence which include imminence as a core feature. The problem is that traditional imminence rules do not cater adequately for the battered woman’s situation and for this reason theorists have advocated its abolition. The obvious problem with such a recommendation is that something must stand in its stead to distinguish legitimate cases from illegitimate cases of self-defence. In respect of the imminence requirement, the problems created by this standard cannot be solved by replacing imminence with necessity or by claiming priority for necessity or by demanding that imminence means pacifist rather than the libertarian version of necessity. These positions pose the question but do not answer it. Furthermore, if the imminence question cannot be answered by assuming one side of the necessity debate, then it cannot be answered by referring to the distinction between justification and excuse. It is submitted that “instead of viewing objectivity as not being able to account for battered woman’s situation – the opposite conclusion should be reached – that by rethinking certain situational factors as a set of relatively innocuous and perhaps necessary normative propositions then the abused woman’s situation is consistent with some very standard propositions in the law of self-defence. If the abused women is being attacked and the threat is imminent (in the traditional sense), then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this dangerous situation. However, the court would also have to take into consideration the difficulty that the abused woman faced in extricating herself from this position. On the basis of a discussion of the various construals that inform the question of whether proportionality should form a necessary requirement for self-defence, including (i) the liberal aspiration to neutrality, (ii) constitutional norms and (iii) a duty of social solidarity to the state, it is submitted that proportionality should form an integral part of the requirements for self-defence. The test can be set out as follows: not only must the defence be necessary but also the means used by the accused for the purpose of averting the attack must be reasonable in the circumstances. This is in accordance with the autonomy theory. Therefore, would an “ordinary, intelligent and prudent person in the accused’s situation would react to establish if the self-defence claim was justifiable. However, it is submitted that not all the characteristics of the accused should be taken into account. Only those “characteristics which have the most (or direct) bearing on the accused’s situation” should be considered. Despite the rationales underlying self-defence, it has not been entirely clear whether an abused woman is expected to flee. It is submitted that there should be a duty to retreat. In the case of the abused woman, her situation is adequately catered for within the reasonableness neutrality perspective. In respect of the defence of provocation, Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as an excuse for criminal conduct, but only as a factor which might mitigate sentence, if the anger was justified by provocation. South African law with its parent system in Roman-Dutch law might have followed this lead had it not result of the Transkei Penal Code of 1887, it envisaged a type of a partial excuse: even if been for the introduction of the mandatory death penalty for murder in 1917. In 1925 as a killing was intentional, homicide which would otherwise be murder maybe reduced to culpable homicide. The test for provocation was thus an objective one. By 1949 in R v Thibani it was held that provocation was not a defence but a special kind of material from which in association with the rest of the evidence the court should decide whether the accused had acted involuntary or without intent to kill. This introduced a subjective test for provocation. But a number of crucial issues remained unresolved; could intense provocation or emotional stress serve to exclude criminal capacity or voluntary conduct. After the decision in Chretien, the question arose, if severe intoxication could exclude these basic elements of liability then could it not also exclude provocation or emotional stress. At this point, the notion of criminal capacity came to the fore. This notion was unknown in South African common law and was adopted from Continental Legal systems, specifically Germany. The notion took hold with the Rumpff Commission of Inquiry into the Responsibility of Deranged Persons and Related matters, the recommendations of which gave rise to the provision of section 78 (1) of the Criminal Procedure Act. In S v Mahlinza set out that criminal capacity of actor is an essential requirement necessary to establish criminal liability. Criminal capacity consists of cognitive component i.e. ability to distinguish between right and wrong and conative capacity i.e. the ability to act in accordance with the distinction. If either was lacking no liability would ensue. In S v Van Vuuren, the court expressed in unequivocal terms that the accused could not be held liable where failure to comprehend what he is doing is attributable to a combination of factors such as provocation or emotional stress. The very idea of allowing provocation to function as a defence excluding an accused’s criminal liability is inherently controversial. From a moral and ethical perspective people are expected to control themselves, even under provocation or emotional stress. To allow it to function as a complete defence as opposed to mitigating factor means that it gives credence to the belief that retaliation is justified in the eyes of the law and this is the very thing criminal law guards against. Despite the well established nature of the defence of non-pathological incapacity, the law has been thrown into flux by the decision of the Supreme Court of Appeal in S v Eadie which constituted a serious erosion of the notion of criminal capacity, with a concomitant “ripple effect” on other topics within the general principles of criminal law. The question this case has highlighted for South African law of non-pathological incapacity is whether the boundaries of the defence have been inappropriately extended. This is so since the court held not only that there is no distinction between the defence of automatism and nonpathological incapacity, and that it would have to be established that the accused acted involuntarily in order for her defence of lack of capacity to prevail, but furthermore held that the court should assess the accused persons evidence about his state of mind by weighing it against his actions and surrounding circumstances, thereby introducing an objective test. Theorists such as Burchell have considered this move “bold” and “encouraging” for its emphasis on objective norms, and the fact that it brings it into line with both the English and American jurisdictions, where not only is an objective element introduced into the enquiry, but where loss of self-control is not totally excusable since the law assumes that provoked party was not totally incapable of controlling anger. If an accused was unable to control himself, a full excuse would be defensible. The notion of capacity has its approximate equivalent in the English and American law of provocation where the jury must consider the subjective question of whether the accused was actually provoked to lose self-control, the defence requires that a reasonable person in the same circumstances would have lost-self control and acted as the accused did. The South African notion of capacity is examined with reference to the way provocation is treated in these jurisdictions. Should non-pathological incapacity be equated with automatism, the established precedent in provocation and other cases of non-pathological incapacity would have to be revised by implication, and would have serious implications for the principle of legality and restricting the scope of the defence for battered women. Furthermore, it is submitted that a move towards an objective test should not be followed. This is so since such an approach does not extend to encompass the battered woman’s mental and emotional characteristics including recognized psychological disorder symptoms. This results in the court not having any meaningful way to determine whether the battered woman lost self-control and furthermore it will lead to increasing attention being directed at how far the objective test be tailored to fit the capacity of the accused. The problem with the capacity test is that it has created via the Criminal Procedure Act a new element of liability by drawing from both the general physical and the mental liability enquiries. Therefore, by duplicating the voluntary act requirement under mens rea, the courts have asked the same question twice. Once the accused is shown to be acting voluntarily, there will be a measure of goal-directed conduct. Where goal-directed conduct is present, it necessarily implies that here must be a level of capacity present in the case of the defence of non-pathological incapacity. In other words, the question is not whether capacity is present, but to what extent it is present. This point is not acknowledged by our courts: the concept of psychological fault underlying South African law offers no explanation for the fact that culpability is capable of gradation. The effects of battering could be used to support a defence of diminished capacity, which focuses not on mitigating circumstances of the act, but rather on the actor’s inability to form the requisite mens rea for the offence charged. However, the introduction of such a defence could only be achieved by returning to the rules relating to provocation followed in South Africa prior to 1971. According to the specific intent doctrine, policy considerations require that an accused should not be completely acquitted. However, these considerations require that an accused should not be completely acquitted. However, these considerations also require that an accused not be convicted of murder but of culpable homicide. This compromise solution (of culpable homicide) can only be reached by treating provocation as a special defence, one which is not strictly adjudicated in terms of the general principles relating to culpability (mens rea). Furthermore, it is submitted that a subjective test must be applied, since Snyman’s objective-subjective test leads to an illogical confusion between the subjective and objective elements. / Thesis (LL.D.)-University of KwaZulu-Natal, Pietermaritzburg, 2009.

This thesis dealt with the constitutionality of the provisions of the Criminal Procedure Amendment Act, 2003 (Act 42 of 2003), pertaining to the leave requirement and petition procedures in respect of appeals against conviction, sentence or orders of the lower courts.

Text in Afrikaans / Beskermi ng van fundamente le mense- en konst itus i one le regte het moderne regstelsels tot herbesinning oor tradisionele bewysregreels rakende die toelaatbaarheid van getuienis aangaande verklarings van 'n beskuldigde en die privilegie teen selfinkriminasie gedwing. Om die omvang van die stroming op die kwessie van getuienis oor aanwysings wat op 'n onvrywillige of onbehoorlike wyse bekom is vas te stel, word 'n analise gedoen van artikel 218 van die Strafproseswet, wat fokus op die toelaatbaarheid van getuienis oor aanwysings en getuienis wat as gevolg van aanwysings verkry is. Die Appelhofbeslissing in S v Sheehama oor die toelaatbaarheid van getuienis omtrent gedwonge aanwysings, word gesien as die beliggaming van 'n nuwe filosofie rakende die beskuldigde se privilegie teen selfinkriminasie. Die gevolgtrekking word gemaak dat die bepalings van artikel 218(2) onbillik is, 'n skending van die beskuldigde se privilegie teen selfinkriminasie tot gevolg het en herroep moet word. Voorstelle vir regshervorming word in hierdie verband gemaak. / The protection of fundamenta 1 human and con st itut i ona 1 rights has caused modern legal systems to re-evaluate traditional rules of evidence regarding the admissibility of evidence concerning statements of an accused and the privilege against self-incrimination. To determine the extent of such a re-evaluation on evidence of paintings-out which are involuntarily or improperly obtained, an analysis of section 218 of the Criminal Procedure Act is undertaken. It focuses on the admissibility of evidence of paintings-out and evidence obtained in consequence of pointingsout. The decision of the Appellate Division in S v Sheehama on the admissibility of evidence of pointing-outs, obtained by means of compulsion, is seen as an embodiment of a new philosophy towards an accused's privilege against nondiscrimination. It is concluded that the provisions of section 218(2) are unfair, infringe on an accused's privilege against self-incrimination and should be repealed. Proposals for law reform are made in this regard. / Criminology and Security Science / LL.M.

LL.D. / Please refer to full text to view abstract

Text in Afrikaans / Artikel 217 is van toepassing op Jn bekentenis, synde Jn ondubbelsinnige erkenning van skuld, wat indien dit in Jn hof gemaak sou word, sou neerkom op Jn pleit van skuldig. Om toelaatbaar te wees, moes die verklaarder die bekentenis vrywillig en ongedwonge, by sy volle positiewe sender onbehoorlike beinvloeding afgele het aan Jn landdros of vrederegter. Waar die bekentenis in Jn dokument vervat is, is dit, mits daar aan die toelaatbaarheidsvereistes voldoen is, toelaatbaar teen die verklaarder daarvan. Artikel 209 vind toepassing mits die bekentenis Jn volle bekentenis is en die vereistes van artikel 217 nagekom is. Volgens die beslissing in S V SHEEHAMA 1991 2 SA 860(A) is Jn aanwysing Jn erkenning. As sulks moet dit voldoen aan die vereistes van artikel 219A en moes derhalwe vrywillig en ongedwonge gemaak wees. Jn Gedwonge aanwysing is dus ontoelaatbaar, tensy nuwe feite ontdek word as gevolg daarvan. / Section 217 is applicable to a confession, being an unequivocal acknowledgment of guilt, the equivalent of a plea of guilty before a court of law. To be admissible, the declarant must have made the confession to a magistrate or justice freely and voluntarily in his sound and sober senses without having been unduly influenced thereto. Section 209 is applicable provided that the confession is a full confession and the requirements of section 217 are complied with. According to the judgment in S V SHEEHAMA 1991 2 SA 860(A) a pointing out is an admission. As such it must comply with the requirements of section 219A and must therefore be made voluntarily and freely. An involuntary pointing out is thus inadmissible, except if new facts are discovered because of it. / Criminal and Procedural Law / LL.M.