Due to the party-orientation and professional nature of the adversary mode of criminal procedure, the principles of a fair trial are best observed where the accused is represented by a lawyer. Given the advantages to be gained from legal representation, the principle of equal justice requires that all accused should have access to legal assistance and thus that legal aid should be provided for indigent accused. The South African legal aid scheme cannot yet provide assistance to all indigent accused because of the large number of these accused, the shortage of manpower and the lack of funds. There are, however, few legislative provisions to safeguard the rights of the vast majority of accused, arraigned in the lower courts, who remain undefended. The Supreme Court, in order to ensure that these accused are fairly tried, has imposed the following types of duties on judicial officers: (a) a duty to facilitate the accused's participation in the proceedings by advising him of his rights and duties and assisting him in their exercise; (b) a duty to control the prosecutor in the exercise of his powers; and (c) a duty to conduct an enquiry before arriving at administrative-type decisions. These duties are, however, inadequate to achieve the Court's, objective because, firstly, not all, rights are made accessible to the accused, and secondly, the duties are inadequate to ensure that the accused's guilt is reliably established. The failure of the legislature and the Supreme Court to incorporate the principle of equal justice into the legal process, has resulted in court proceedings that are characterized by unjust practices and outcomes. To ensure the more equitable prosecution of undefended accused it is suggested that an activist judicial officer should be responsible for the enforcement of all the principles of a fair trial (which would be concretized in clear legal rules) in an impartial manner, with his decisionmaking routinely supervised by the Supreme Court. / Thesis (LL.D.)-University of Natal, Durban, 1986.

There exists a lacuna in our legal system, the role of the judiciary in the lawmaking process is not well defined. 'Historically, the judiciary has always claimed that its duty was merely to interpret and apply the law and that it was not within its province to legislate.' Custom and practice on the other hand has revealed that. to some extent, this is not entirely true. Because through precedents and pronouncements of statutes unconstitutional and therefore, null and void, the former in that sense makes laws and is practically involved in the law-making process. • Judicial discretion is another means at the disposal of the judiciary by which the latter legislates." Therefore, the notion that the province of the judiciary is only confined to the interpretation and application of the law is overwhelmingly misleading. The role of the judiciary in the law making process has to be clearly defined and not just to be inferred so that there is left no middle ground or grey area between its involvement and non-involvement. Once this is done, the problem of uncertainty and inconsistency in so far as the judicial process is concerned will be remedied. Since it is indeed the judiciary that decides the cases before them, from these cases it is respectfully submitted that the interpretative process they adopt in arriving at their decision itself amounts to law-making. It is trite law that when courts interpret the law. they also make the law in that process. This reasoning has long been accepted in our legal order and in foreign jurisdictions. The former President of the United States of America, Roosevelt. precisely pointed out in his message to the Congress of the United States on the 8th December 1908, thus: The Chief lawmakers in our country may be. and often are, the judges. because they are the final seat of authority. Every time they interpret contract. property, vested rights, due process of the law. liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental. they give direction to all lawmaking. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions. 1 Even though the above quote was said in the last century, it is still applicable today because judges still do the job of interpreting and applying the law. In doing so they are involved in the law-making process. It has become manifest, as this study will reveal, that Ihe judiciary is involved in the law-making process even though this has proven somewhat irksome to 1 PresidenlTheodore Roosevelt, Message to the Congress of the United States, 8th December 1908, 43rd Congressional Record ,Part 1, p.21 . accept and appreciate, bearing in mind the overriding democratic principles such as seoaration of DOwers and the independence of the judiciary .. Therefore this study endeavours to interrogate the manner by which the South African judiciary has been involved in the law-making process both during the previous apartheid regime and in the present democratic dispensation. Futhermore, this study also attempts to answer the question as to how the judiciary will continue to legislate in the present judicial transformation process without upsetting the imperatives of the doctrine of separation of powers and the independence of the judiciary. / Thesis (LLM)--North-West University, Mafikeng Campus, 2006.

There exists a lacuna in our legal system, the role of the judiciary in the law-making process is not well defined. 'Historically, the judiciary has always claimed that its duty was merely to interpret and apply the law and that it was not within its province to legislate.' Custom and practice on the other hand has revealed that to some extent, this is not entirely true. Because through precedents and pronouncements of statutes unconstitutional and therefore, null and void, the former in that sense makes laws and is practically involved in the law-making process. "Judicial discretion is another means at the disposal of the judiciary by which the latter legislates." Therefore, the notion that the province of the judiciary is only confined to the interpretation and application of the law is overwhelmingly misleading. The role of the judiciary in the law making process has to be clearly defined and not just to be inferred so that there is left no middle ground or grey area between its involvement and non-involvement. Once this is done, the problem of uncertainty and inconsistency in so far as the judicial process is concerned will be remedied. Since it is indeed the judiciary that decides the cases before them, from these cases it is respectfully submitted that the interpretative process they adopt in arriving at their decision itself amounts to law-making. It is trite law that when courts interpret the law, they also make the law in that process. This reasoning has long been accepted in our legal order and in foreign jurisdictions. The former President of the United States of America, Roosevelt, precisely pointed out in his message to the Congress of the United States on the 8th December 1908, thus: The Chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of the law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions. Even though the above quote was said in the last century, it is still applicable today because judges still do the job of interpreting and applying the law. In doing so they are involved in the law-making process. It has become manifest, as this study will reveal, that the judiciary is involved in the law-making process even though this has proven somewhat irksome to "President Theodore Roosevelt, Message to the Congress of the United States, 8th December 1908, 43rd Congressional Record ,Part 1, p.21" accept and appreciate, bearing in mind the overriding democratic principles such as separation of powers and the independence of the judiciary .. Therefore this study endeavours to interrogate the manner by which the South African judiciary has been involved in the law-making process both during the previous apartheid regime and in the present democratic dispensation. Furthermore, this study also attempts to answer the question as to how the judiciary will continue to legislate in the present judicial transformation process without upsetting the imperatives of the doctrine of separation of powers and the independence of the judiciary. / (LLM) North-West University, Mafikeng Campus, 2006

As a restut of British colonization and their attempts to govern a variety of different cultures many nations now share a common bond in their criminal justice systems. This research focuses on the impact of some of those common bonds on the South African and United States criminal justice systems. Along with many national historical similarities there appears to be similarities in the approaches these two governments have taken to remedy criminal justice issues that arise. Political interference, lack of cooperation, poor communication skills, interagency discord and a lack of unified direction seem to plague both criminal justice systems. As a resulc both criminal justice systems appear: to be fragmented and in a constant state of flux. One solution that attempts to remedy the mistrust developed by individual citizens and their communities as a result of the fragmentation of their criminal justice system is community policing. Both nations are embarking on a concept that was proposed by Sir Robert Peel in 1829 when he espoused the ideal of Police, at all times, should maintain a relasionship with the public that gives reality to the historic tradition that the police are the public and the public are the police. The fragmentation which causes many of the dilemmas faced by the criminal justice system appears to be a necessary element of any system that wishes to be able to grow and change with time. As we embark on the 21st century, globalization w1ll become a factor in every surviving national goverernment. South Africa and the United States appear co be positioning themselves to be active patcipants in this process / Criminology and Security Studies / D.Litt. et Phil. (Criminology)

Drug policy and the treatment of drug offenders' is an area that receives much attention worldwide. Because of the authorities' apparent inability to deal with this form of crime, it has universally been deemed necessary to look generally at the punishment of this category of offender and specifically at alternative methods to deal with these perpetrators. An extensive study of drug treatment approaches and models used by various countries merely highlights and emphasises the need for the creation and implementation of a suitable treatment modality for drug offenders. Other countries do not and cannot offer solutions to South Africa's dilemma in the handling of its large offender population. It is for this reason that the researcher has selected workable aspects from various systems in a multidimensional and multidisciplinary management approach to the handling of drug offenders in the South African context. The researcher utilises certain components of the systems theory to describe the manner in which the criminal justice system processes drug offenders. For this purpose, the researcher uses the systems theory as a framework for the application of the drug model that takes place on all levels within the criminal justice system. The researcher aims to use existing drug policy to form the basis of the drug model, and sets structural and procedural guidelines for dealing with this category of offender. The researcher furthermore calls for the implementation of such a model. / Corrections Management / D.Litt. et Phil. (Penology)

The President, Thabo Mbeki, established the Directorate of Special Operations (DSO) in 1999 shortly after the general elections. The DSO was intended to supplement the efforts of the South African Police Services in combating crime. The unit would concentrate on national priority crimes and police corruption and would report to the National Director of Public Prosecutions (NDPP). The founder members of the DSO were identified in my research and open-ended interviews were conducted with them. The goal of my research was to understand the founder group's experience of the creation of the organisational culture of the DSO and what that experience meant to them . In particular, I wanted to establish what role the founder members of the DSO believed their values and beliefs played in creating the organisation's culture, and their perception of how those values influenced the leadership, management and organisation processes of the DSO. The public sector environment seldom offers opportunities to create something new and this was a unique experience. The founder members received no personal gain except the satisfaction of creating something that would be there for their descendants, something that would change the face of law enforcement forever and in fact, pioneer the troika methodology for the first time in the world within a permanent structure. The values of the founder members influenced their decision to join and they believed that the DSO would make a difference in the lives of ordinary South Africans. They were dedicated, committed, loyal and passionate. Their leadership inspired the members of the organisation and ensured the success of the DSO, despite the lack of resources, staff and legislation. This was an exciting time in the history of the organisation and many personal sacrifices were made. The founder members are proud of the achievements of the DSO and of having been a part thereof. It certainly was "a brilliant time".

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.

Many children in conflict with the law are not receiving the relevant education and services to which they are entitled. Convention on the Rights of the Child, proclaim that the convicted child‟s needs of persons of their age, like the right to appropriate education must be addressed as a matter of urgency. In addition, there is a serious lack of properly trained personnel who might be causing more impairment to children in conflict with the law, but who remain in the system. The appointment of relevant and appropriate staff in correctional facilities is definitely required. For instance, many young offenders lacked a decent education, social skills and occupational skills and involvement of parents, peers and the community. If essential programmes become successful, this will not only improve the livelihood of children in conflict with the law, but will also reduce recidivism rates. Qualified teachers and caregivers are required because the children in conflict with the law require specialised programmes like Individual Education Plan (IEP). The IEP is a basic aspect in providing quality special education services to help a particular learner attain his or her maximum learning potential. The aim of this study was to develop socio-ecological framework in understanding and giving support to children in conflict with the law. Bronfenbrenner‟s ecological model was used as a conceptual framework. Qualitative research design and phenomenology as a mode of enquiry were employed in this study. Interpretivism was used a philosophical paradigm. Population was learners, between ages of eleven and seventeen, from three correctional facilities. Purposive sampling was used as a method of sample selection. The findings in this study indicated that the children in conflict with the law resented the teachers showing signs of being judgemental, for failing to acknowledge their efforts and for being unresponsive to their needs. Initial desires to succeed in the classroom were replaced by frustration, anger, hopelessness and disappointment following failure. Many of their acting out behaviours were an expression of this anger and disappointment. / Inclusive Education / D. Ed. (Inclusive Education)

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.

Many children in conflict with the law are not receiving the relevant education and services to which they are entitled. Convention on the Rights of the Child, proclaim that the convicted child‟s needs of persons of their age, like the right to appropriate education must be addressed as a matter of urgency. In addition, there is a serious lack of properly trained personnel who might be causing more impairment to children in conflict with the law, but who remain in the system. The appointment of relevant and appropriate staff in correctional facilities is definitely required. For instance, many young offenders lacked a decent education, social skills and occupational skills and involvement of parents, peers and the community. If essential programmes become successful, this will not only improve the livelihood of children in conflict with the law, but will also reduce recidivism rates. Qualified teachers and caregivers are required because the children in conflict with the law require specialised programmes like Individual Education Plan (IEP). The IEP is a basic aspect in providing quality special education services to help a particular learner attain his or her maximum learning potential. The aim of this study was to develop socio-ecological framework in understanding and giving support to children in conflict with the law. Bronfenbrenner‟s ecological model was used as a conceptual framework. Qualitative research design and phenomenology as a mode of enquiry were employed in this study. Interpretivism was used a philosophical paradigm. Population was learners, between ages of eleven and seventeen, from three correctional facilities. Purposive sampling was used as a method of sample selection. The findings in this study indicated that the children in conflict with the law resented the teachers showing signs of being judgemental, for failing to acknowledge their efforts and for being unresponsive to their needs. Initial desires to succeed in the classroom were replaced by frustration, anger, hopelessness and disappointment following failure. Many of their acting out behaviours were an expression of this anger and disappointment. / Inclusive Education / D. Ed. (Inclusive Education)