Summaries in Afrikaans and English / Text in Afrikaans / 'n Kort elementologiese uiteensetting vir strafregtelike aanspreeklikheid word gevolg deur bewysregtelike begrippe wat van toepassing is op vermoedens by toerekeningsvatbaarheid. Die historiese regsposisie asook die ontwikkeling in die huidige Suid-Afrikaanse reg met betrekking tot geestesongesteldes, kinders en persone wat 'n verweer van nie-patologiese ontoerekeningsvatbaarheid insluit, word bespreek. Daar word gekonsentreer op ·die ontwikkeling van 'n algemene verweer van niepatologiese ontoerekeningsvatbaarheid. Die konstitusionele reg, vennoedens en ontoerekeningsvatbaarheid word aan die hand van Suid-Afrikaanse regspraak en die Interim Grondwet bespreek. Daar word na buitelandse reg gekyk ten einde 'n aanbeveling te kan maak wat grondwetlik nie sal indruis op die reg van die individu tot onskuld nie. 'n Algemene verweer van nie-patologiese ontoerekeningvatbaarheid word onderstellll mits dit met omsigtigheid deur die howe benader word. Die arbitrere ouderdomsgrens vir vasstelling van toerekeningsvatbaarheid by kinders word gekritiseer en 'n verhoorbaarheidvasstellingseenheid word aanbeveel. / A short elementological discussion of criminal responsibility is followed by concepts of law of evidence that is applicable to presumptions of accountability. The historical legal position as well as the development in the current South African law and the present legal position with reference to the mentally disturbed children and persons with a defence of non-pathological unaccountability are included and discussed. The constitutional law, presumptions and unaccountablility are discussed with reference to the South African case law and the Interim Constitution. Foreign law is perused so that a recommendation could be made that would not interfere with the rights of the individual to be deemed innocent. A general defence of non-pathological unaccountability is supported if it is treated with the necessary circumspection by the courts. The arbitrary age boundaries for the determination of accountability in children is critized and a unit to determine trialability for pathological and non-pathological accountability is recommended. / Criminal & Procedural Law / LL.M.

Penology / (M.A. (Penology)

Quantified decision-making refers to the scaling of factors such as crime seriousness, risk assessment, violation severity, and punitive responses or intensity of surveillance. As such, it is largely based on the justice principle, according to which the punitive response should be commensurate with the crime committed. This study consequently looks at the applicability of a retributive stance towards probation, and suggests a quantified, or structured, approach to decision-making in probation with special reference to the South African situation. Referring to historical and ideological precedents, it is maintained that the current crisis in corrections - referring to the congestion of prison facilities and the negative spin-offs related to it - can, to a large extent, be ascribed to an over reliance on imprisonment as a sentencing option. It is argued that imprisonment can be seen as a failure in terms of both its basic motives, and more importantly, with regard to its unintended consequences, necessitating a search for viable sentencing alternatives. With regard to probation, and Intensive Supervision Probation (ISP) in particular, this study recognizes its limitations, but maintains that probation still holds the greatest potential as a workable alternative to incarceration. In view of South African corrections, that is plagued by prison overcrowding, on the one hand, and certain structural shortcomings, on the other, a structured probation system is proposed that will evade the weaknesses of subjective decisionmaking, which often act to intensify the crisis. It is proposed that quantified decision-making tools be developed that will replace both sentencing and revocation decisions. It is further suggested that an effective risk prediction instrument be developed to guide the probation process. / Penology / D. Litt. et Phil.

This study analyses judicial approaches to sentencing offenders under the age of 18 convicted of serious crimes and their adult counterparts. It traces sentencing patterns, trends and shifts from 1950 to 2009 with reference to key moments. The study seeks to identify factors that determine the choice of sentence. Indeed, competing penal theories appear to be behind judicial decisions. In this regard it is claimed that although it is difficult to identify the extent of factors considered in sentencing decisions, seriousness of crime seems to carry more weight than the prior record and age factor in the selection of a sentence. The study applied both quantitative and qualitative methodologies, using primary or historical and secondary sources of data collection. This involved studying real court cases, the observation of trials and interviews with Wynberg regional court magistrates, Mitchells Plain regional court magistrates and Cape High Court Judges as part of primary-historical data collected. Penal statistics and data gathered included law reports, penological literature was analysed and computerised, and philosophical interpretation of findings was used. The study concludes that sentencing approaches are still marked by inconsistency and vagueness, which require to be improved by ongoing assessment within the courts in pursuit of balanced sentencing that meets various goals. It is pointed out that there are variations between the courts, and among different regional magistrates and judges, which require to be justified in the light of the divergences in crime seriousness and offenders alike. The study claims that sentencing is a complex and multifaceted phenomenon, involving history, law and sociology. It further recommends that persons under the age of 18 convicted of serious crime should be accorded less culpability compared to adults with regard to sentence severity. / Criminology and Security Science / D. Litt. et Phil. (Penology)

The goal of this research was to determine the procedures used for conducting a search and seizure in a tax-related offence in terms of the Criminal Procedure Act, Act 51 of 1977. Aspects that cause problems for the South African Revenue Service (SARS) investigators are the application for a search warrant and the activities that take place before, during and after the search and seizure. An introduction, definition and explanation are given of certain key concepts such as forensic and criminal investigations, as well as their objectives and purpose. The various search methods are also discussed and explained as are the chain of custody and evidence in general. A large part of this research deals with the legal requirements for a search and seizure in a tax-related offence and encompasses issues such as the procedures for obtaining a search warrant, pre-raid briefing, conducting the search, and the seizing of, marking, storage and disposal of documents. The findings of the research are discussed and recommendations subsequently made regarding the shortcomings identified. The findings that were made related to the process and procedure to obtain a search warrant, the actual execution of a search and seizure and the legislation that authorises searches and seizures in taxrelated offences. Further findings were made in respect of the mandate of SARS criminal investigators to investigate, the admissibility of evidence obtained from a search and seizure and the marking, recording, storage and disposal of seized items. Recommendations were made regarding training, improved communication and skills transfer to address the shortcomings identified. / Police Practice / (M.Tech. (Forensic investigation))

In the light of a more punitive stance in Corrections and public discontent with the criminal justice system, a number of studies have been conducted since 1970 testing public punitiveness, probably in an attempt to determine whether sentences laid down by courts are in line with public perceptions on just deserts. This study combines two scales: The first a Likert scale measuring punitiveness as such and the second a "Just Deserts" scale testing public reactions in terms of imprisonment for crime descriptions. By using Pearson's correlation, no positive correlation could be established between these two scales. Profiles of the top and bottom 15% scorers on both scales showed that the scales were, if anything, negatively related. This information is informative in the sense that opinion polls showing public discontentment with sentencing cannot be seen as a true reflection of their reactions to more descriptive cases. / Penology / M.A. (Penology)

Summaries in Afrikaans and English / Text in Afrikaans / 'n Kort elementologiese uiteensetting vir strafregtelike aanspreeklikheid word gevolg deur bewysregtelike begrippe wat van toepassing is op vermoedens by toerekeningsvatbaarheid. Die historiese regsposisie asook die ontwikkeling in die huidige Suid-Afrikaanse reg met betrekking tot geestesongesteldes, kinders en persone wat 'n verweer van nie-patologiese ontoerekeningsvatbaarheid insluit, word bespreek. Daar word gekonsentreer op ·die ontwikkeling van 'n algemene verweer van niepatologiese ontoerekeningsvatbaarheid. Die konstitusionele reg, vennoedens en ontoerekeningsvatbaarheid word aan die hand van Suid-Afrikaanse regspraak en die Interim Grondwet bespreek. Daar word na buitelandse reg gekyk ten einde 'n aanbeveling te kan maak wat grondwetlik nie sal indruis op die reg van die individu tot onskuld nie. 'n Algemene verweer van nie-patologiese ontoerekeningvatbaarheid word onderstellll mits dit met omsigtigheid deur die howe benader word. Die arbitrere ouderdomsgrens vir vasstelling van toerekeningsvatbaarheid by kinders word gekritiseer en 'n verhoorbaarheidvasstellingseenheid word aanbeveel. / A short elementological discussion of criminal responsibility is followed by concepts of law of evidence that is applicable to presumptions of accountability. The historical legal position as well as the development in the current South African law and the present legal position with reference to the mentally disturbed children and persons with a defence of non-pathological unaccountability are included and discussed. The constitutional law, presumptions and unaccountablility are discussed with reference to the South African case law and the Interim Constitution. Foreign law is perused so that a recommendation could be made that would not interfere with the rights of the individual to be deemed innocent. A general defence of non-pathological unaccountability is supported if it is treated with the necessary circumspection by the courts. The arbitrary age boundaries for the determination of accountability in children is critized and a unit to determine trialability for pathological and non-pathological accountability is recommended. / Criminal and Procedural Law / LL.M.

No Abstract available / Jurisprudence / L.LD.

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees. / Criminal & Procedural Law / LLM

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees. / Criminal and Procedural Law / LLM