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The primary purpose of this paper is to indicate how Canadian legislative reforms could provide valuable insights regarding the reform of sexual assault law in South Africa. The first section of this paper contains an examination of three particular evidentiary rules in the South African context. In the second section a feminist critique of rape law is used to explore the significance of these rules in rape trials, using the framework of significant themes of the feminist enquiry. In the third section I look at the development of these evidentiary rules in Canada and evaluate the present legal position in this regard, with particular reference to decision of the Supreme Court of Canada in R v Seaboyer, R v Gayme (1991) 83 D.L.R. (4th) 193. In the final instance, an attempt is made to identify some significant lessons for those seeking to formulate the much needed reforms to these rules in South Africa.

The acquisition of digital evidence is the most crucial part of the entire digital forensics process. During this process, digital evidence is acquired in a forensically sound manner to ensure the legal admissibility and reliability of that evidence in court. In the acquisition process various hardware or software tools are used to acquire the digital evidence. All of the digital forensic standards relating to the acquisition of digital evidence require that the hardware and software tools used in the acquisition process are validated as functioning correctly and reliably, as this lends credibility to the evidence in court. In fact the Electronic Communications and Transactions Act 25 of 2002 in South Africa specifically requires courts to consider issues such as reliability and the manner in which the integrity of digital evidence is ensured when assessing the evidential weight of digital evidence. Previous research into quality assurance in the practice of digital forensics in South Africa identified that in general, tool validation was not performed, and as such a hypothesis was proposed that digital forensic practitioners in South Africa make use of hardware and/or software tools for the forensic acquisition of digital evidence, whose validity and/or reliability cannot be objectively proven. As such the reliability of any digital evidence preserved using those tools is potentially unreliable. This hypothesis was tested in the research through the use of a survey of digital forensic practitioners in South Africa. The research established that the majority of digital forensic practitioners do not use tools in the forensic acquisition of digital evidence that can be proven to be validated and/or reliable. While just under a fifth of digital forensic practitioners can provide some proof of validation and/or reliability, the proof of validation does not meet formal international standards. In essence this means that digital evidence, which is preserved through the use of specific hardware and/or software tools for subsequent presentation and reliance upon as evidence in a court of law, is preserved by tools where the objective and scientific validity thereof has not been determined. Since South African courts must consider reliability in terms of Section 15(3) of the Electronic Communications and Transactions Act 25 of 2002 in assessing the weight of digital evidence, this is undermined through the current state of practice in South Africa by digital forensic practitioners.

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Thesis (LLM)--University of Stellenbosch, 2005. / ENGLISH ABSTRACT: The law regarding the admissibility of unconstitutionally obtained evidence for impeaching the accused's testimony is still undeveloped. This work discusses three of the options available to South African courts and the difficulties inherent in each. The first is to follow the approach of the Supreme Court of the United States. The American approach regarding the exclusion of evidence from the case in chief is strict. Courts are not bestowed with a discretion to admit unconstitutionally obtained evidence: Unless one of the accepted exceptions exist, a court must exclude unconstitutionally obtained evidence in order to deter unconstitutional behaviour by the authorities. Deterrence of unconstitutional police behaviour is however no longer considered controlling when cross-examining the accused. Unconstitutionally obtained evidence - both real and testimonial communications - is therefore admissible for impeachment purposes despite being excluded from the case in chief. The rationale is to prevent the accused giving perjurious testimony in the face of the prosecution's inability to impeach the accused's veracity in the usual manner. The application of the American approach in South Africa has however already been rejected in S v Makhathini.1 The second possibility is for South African courts to follow the position of the Supreme Court of Canada in R v Calder.2 The admissibility of impeachment evidence in Canada - as with evidence in chief - is based on the effect of its admission of the repute of the administration of justice. However, evidence excluded from the case in chief will only in very rare circumstances be admitted in cross-examination of the accused. Finally, the option suggested by this thesis, is to continue the trend started by s 35(5) of the South African Constitution, which has already been applied with great success in cases where the admissibility of unconstitutionally obtained evidence in the case in chief is in issue. Section 35(5), like the Canadian s 24(2) it bears some resemblance to, gives courts a discretion to exclude unconstitutionally obtained evidence on the basis of unfairness to the accused or the effect admission will have on the administration of justice. It is submitted in this thesis that, because of the interlocutory nature of a ruling on admissibility, this approach adapts easily to the admission of limited purpose evidence such as impeachment evidence: If the admission of the unconstitutionally obtained evidence, regardless of whether it was previously excluded from the case in chief, renders the trial unfair or would otherwise be detrimental to the administration of justice it must be excluded. / AFRIKAANSE OPSOMMING: Die reg in verband met die toelaatbaarheid van ongrondwetlik verkree getuienis vir 'n geloofwaardigheidsaanval op die beskuldigde is nog in 'n vroee stadium van ontwikkeling. Hierdie tesis bespreek drie moontlikhede beskikbaar aan Suid-Afrikaanse howe en die probleme inherent aan elkeen. Die eerste is om die posisie van die Amerikaanse Hooggeregshof te volg. Die Amerikaanse posisie betreffende die toelaatbaarheid van getuienis tydens die staat se saak is streng. Howe het geen diskresie om ongrondwetlik verkree getuienis toe te laat nie: Behalwe in gevalle waar aanvaarde uitsonderings bestaan, moet 'n hof dus ongrondwetlik verkree getuienis uitsluit om ongrondwetlike optrede deur die owerhede te voorkom. Voorkoming van ongrondwetlike optrede aan die kant van die polisie is egter nie meer die beherende oorweging wanneer die beskuldigde in kruis-ondervraging geneem word nie. Ongrondwetlik verkree getuienins - beide reel en verklarend van aard - is gevolglik toelaatbaar vir doeleindes van 'n geloofwaardigheidsaanval, ten spyte daarvan dat dit moontlik ontoelaatbaar was tydens die staat se saak. Die rede is om te voorkom dat die beskuldigde meinedige getuienis lewer terwyl die staat verhoed word om the bekuldigde se geloofwaardigheid op die gewone manier te toets. Hierdie posisie is egter al verwerp in S v Makhathini. 3 Die tweede moontlikheid is om die posisie soos uitgele deur die Hooggeregshof van Kanada, in R v Calder 4 te volg. In Kanada word die toelaatbaarheid van getuienis rakende geloofwaardigheid - sowel as getuienis rakende skuld - bepaal deur die invloed wat die toelating daarvan op die reputasie van die regspleging het. Getuienis wat ontoelaatbaar is tydens die staat se saak sal egter slegs in baie beperkte omstandighed toegalaat word tydens kruisondervraging van die beskuldigde. Laastens, die opsie wat voorgestel word deur hierdie tesis, is om voort te gaan met die patroon wat ontwikkel is deur art. 35(5) van die Grondwet van Suid-Afrika, wat alreeds met groot sukses toegepas is in sake waar die toelaatbaarheid van ongrondwetlik verkree getuienis in die staat se saak ter sprake was. Artikel 35(5), soos Kanada se art 24(2) waarmee dit tot 'n mate ooreenstem, gee howe 'n diskresie om ongrondwetlik verkree getuienis uit te sluit op grond van onregverdigheid teenoor die beskuldigde of indien die toelating daarvan 'n negatiewe invloed op die regspleging sal he. Omdat 'n beslissing oor die toelaatbaarheid van getuienis tussenstyds van aard is, pas dit goed aan by die verdere ondersoek na die toelaatbaarheid van getuienis wat slegs VIr 'n beperkte doel aangebied word: Indien die toelating van ongrondwetlik verkree getuienis, ongeag of dit voorheen uitgesluit was uit die staat se saak, die verhoor onregverdig maak of die regspleging negatiefbeinvloed, moet sulke getuienis uitgesluit word.

The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.

This study examines the utility of the MMPI-2 in predicting responsibility in pre-trial forensic patients, using a post hoc sample of 94 offenders from Sterkfontein Psychiatric Hospital in Gauteng. Firstly, the overall characteristics of the pre-trial forensic patients are discussed, following an analysis of demographic, clinical, criminal and MMPI-2 pre-trial data, as well as an overview of the Megargee typological classification of offenders. The sample is classified into Criminally Responsible (CR), Diminished Criminal Responsibility (DCR) and Not Criminally Responsible (NCR), and the CR and DCR groups are collapsed (CR/DCR) for many of the analyses when comparing them to the NCR group. Secondly, the variance of variables with responsibility is discussed, after examining one-way ANOVA’s of demographic, clinical, criminal and MMPI-2 variables, as well as an overview of high point pairs. Thirdly, discriminant analyses were conducted of demographic, clinical and MMPI-2 variables. When comparing the collapsed CR/DCR group to the NCR group, psychiatric diagnosis, presence of psychosis, the MMPI-2 Pa and Es scales, as well as race and substance abuse each had unique predictive power and created a substantial discriminative equation (F (6,70) = 45.732, p <0.0005) with a successful prediction rate of 96%. Using only MMPI-2 variables to predict responsibility showed significant unique contributions for the Pa, Es, MAC-R and Mf scales, with the BIZ scale not quite significant, and a fairly significant overall discriminant equation (F (5,73) = 6.474, p < 0.0005), with an overall successful prediction rate of 82%, with the MMPI-2 variables adding an additional 3% to the predictive power of the demographic and clinical variables. Similarly, when examining the more complex 3 group responsibility classification of CR, DCR and NCR, it was found that the demographic, clinical and MMPI-2 variables of psychiatric diagnosis, psychosis, race, substance abuse, and the Pa, Es and Ma scales all had significant contributions to a powerful discriminant analysis (F (14, 136) = 19.758, p < 0.0005) that was capable of correctly reclassifying almost 95% of the sample, and the MMPI-2 variables providing an increase in predictive power of 8%. Differences in responsible and not responsible pre-trial forensic patients are discussed, as well as the role of the MMPI-2 in assessing these differences, and the fact that it is highly likely that it adds more to the forensic assessment of responsibility than a 3% (CR/DCR versus NCR) or 8% (CR versus DCR versus NCR) increase in predictive power. Limitations of the study are discussed, together with recommendations for future research with the MMPI-2 for assessment of criminal responsibility. The suggestion is made that the MMPI-2 can become a valuable tool in South African forensic settings, not only in the assessment of responsibility and malingering, but also in the placement, management, follow-up and treatment of offenders, to maximize the limited resources in South Africa allocated for the rehabilitation of offenders, and minimize the risk of recidivism or rehospitalization.

This study explores the utilisation of the identification parade as a technique for the identification of suspects. The intention of the study is to empower the investigators with knowledge they can use during their investigations. An identification parade is the most common police identification procedure. When conducted properly, it is considered more accurate than other methods. Crime in South Africa is a serious concern and it impacts negatively on many lives. The fear of crime, the loss of life and the socioeconomic impact of crime, etc., create the impression that the battle against crime has been lost. The limited knowledge among the police investigators contributes to making the reduction of crime more difficult to achieve. This study aims to develop good practice by recommending new ideas on how identification parades should be conducted with the view to enhancing the performance of police investigators. / M.Tech. (Forensic Investigation))

The research attempts to establish how an identification parade should be conducted, for evidence derived from it to be admissible in court. To conduct effective investigation, it is important for investigators to be familiar with the concept “identification parade”, its purpose, the procedures to conduct it and its values. To achieve the goals and objectives of the practice of an identification parade, investigators must know how to conduct it, what the value of its evidence is, and how to use it as a technique to identify suspects. The direction, by implication, and clarification of the crime situation, is hardly possible without the determination of the identity of the perpetrator or suspect of a criminal act. The recognition of the identification parade as a form of evidence gathered is of the utmost importance. / Criminology / Thesis (M.Tech. (Forensic Investigation))

This study investigates the use of personal description as an investigation technique to identify suspects. The study entails qualitative data obtained from interviews with investigators, literature, as well as case studies. The study found that personal description can be used as an investigation technique to identify suspects. There are eight techniques that the investigator should apply in order to identify suspects or perpetrators of a criminal act. To conduct effective investigation, it is important for the criminal investigators to be familiar with the techniques of identification and the application thereof. The description of offenders plays an important role as far as arresting offenders is concerned. The methods used - or to be used - by investigators to describe a person were also discussed. It is important that the investigators should work with other government departments, private investigators and security officials, to implement this technique in order to identify and arrest offenders. / Police Practice / (M. Tech (Forensic Investigation))