The common law right of the accused to be protected against double jeopardy
recently acquired constitutional status in South Africa. Although South African
courts previously applied this rule in various procedural contexts, there has been
very little critical discussion of the values on which the rule is based. Nor have all
contexts in which the rule should be applied been recognised. In the light of the
new constitutional dispensation, it has become necessary to identify and analyse
the values which determine the application of the rule.
This thesis addresses the treatment of various aspects of double jeopardy in other
constitutionally·grounded jurisdictions. Double jeopardy jurisprudence in the
jurisdictions of England, Canada, India, Germany and the federal system of the
United States of America is considered on a comparative basis. The historical
origin and development of the rule are considered first. This is followed by an
assessment of the current application of the rule in the various jurisdictions.
The study demonstrates that South African courts have relied largely on outdated
principles derived from English common law, rather than applying the rule by
focusing on the values that underlie the rule. This approach has become
unacceptable in the new constitutional dispensation, inter alia, because a
teleological, value·orientated interpretative approach has been adopted by the
Constitutional Court. This thesis indicates which of the principles that developed
in foreign constitutional double jeopardy jurisprudence may be of value in
developing an appropriate body of South African constitutional double jeopardy
principles. Proposals are made for future implementation of the rule in various
procedural contexts. These suggestions include constitutional interpretation,
legislative amendment and re·evaluation of various common law principles of
criminal procedure / Criminal and Procedural Law / LL.D. (Criminal & Procedural Law)
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/17030 |
| Date | January 1900 |
| Creators | Jordaan, Louise, 1956- |
| Contributors | Van Rooyen, J. H. (Jan H.) |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (xi, 811 leaves) |
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