Court : South Africa Supreme Court of Appeal
..... universal jurisdiction, a notable development.27 [62] somewhat differently, the german criminal procedure code28expressly obliges that states investigative authorities to commence an investigation into complaints of the commission of certain international crimes where the subject is either present or anticipated to be within the territory, provided that no other jurisdiction is carrying out a genuine investigation of the same crimes.29prosecutors are vested with a discretion to refuse to initiate such an investigation if the suspects presence is not established to be anticipated. ..... aware that a crime has been committed, to trace the alleged offender and bring him or her before court and produce all available evidence, that duty cannot arise under the present circumstances, when the alleged offender is a foreigner, who is not even present in the republic of south africa, or reasonably expected to be present in the near future. ..... 27.5 the minister referred to in paragraph 8.5 of the same document visited the country only once in 2008 (a visit of less than 24 hours duration) and has subsequently never visited the country again; 27.6 only the head of department mentioned in paragraph 8.2 and the minister mentioned in paragraph 8.6 of the same document have visited ..... 7.7 the compilation of photograph albums and/or video footage of crime scenes; 7.8 maintaining a complete and accurate record of the investigation and of the police officers involved therein. ..... code (straffeloven) 1930, section .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... ndhlovu (supra) makes no attempt to reconcile the incongruity between the bar created by section 219 of the criminal procedure act 51 of 1977 and its application of section 3 of the law of evidence amendment act 45 of 1988. ..... to discharge the onus resting upon it, namely to prove the statement admissible against its maker x, the prosecution would have to meet the fairly stringent requirements set respectively by sections 217 and 219a of the criminal procedure act. ..... now each of the accused admitted in the statement made by him that he was present in the deceaseds house taking part in the crime of housebreaking at the time when the deceased was killed but each tried to throw the blame for striking the fatal blow upon the other. ..... following on reports received from cellular telephone service providers and after preliminary investigations, he ultimately travelled to phokotweni section, malukela village in the north west province. ..... [50] in ndhlovu in the high court, no more than four lines of the judgment were devoted to the rule at common law that extra-curial statements by one accused cannot be tendered against another. ..... ) as it was put in dhanabakium v subramanian and another 1943 ad 160 at 167: [t]he position under the common law must be borne in mind in construing the statute. ..... those dicta were cited with approval in stadsraad van pretoria v van wyk 1973 (2) sa 779 (a) at 784f-h. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the help of a number of people, including one mr madoda nkambule, who was referred to throughout the trial as madoda, and who gave evidence in terms of s 204 of the criminal procedure act 51 of 1977, on the basis that if he answered questions frankly and honestly he might be discharged from prosecution. ..... referred to s v vilakazi 2009 (1) sacr 552 (sca) para 15 which dealt with the proper approach to determining whether there are substantial and compelling circumstances that warrant a deviation from the minimum sentence prescribed by the criminal law amendment act 105 of 1997: there this court said that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the ..... first, it argues, the effect of the order (that two years of the period spent in custody while awaiting trial be deducted when calculating the date on which the sentence is to expire for purposes of considering parole) is that the effective sentence is then ten years imprisonment, ..... [10] in refusing leave to appeal against sentence, the trial judge explained that he had taken the four years spent in custody by the respondents awaiting trial into account, and had, on the submission of defence counsel, doubled that number so that he deducted eight years from the sentence ..... evidence in explaining that a court cannot exact vengeance for the murder. ..... period, especially given the length of the period spent in custody, cannot be justified. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the liquidator be and is hereby authorised to bring or defend in the name and on behalf of the close corporation any action or other legal proceedings of a civil nature and subject to the provisions of any other law relating to criminal procedure, and criminal proceedings ..... names of the respondents the appellant has denied in its plea, which was delivered on 13 november 2007, that the respondents are properly cited in compliance with the provisions of section 386(4) of the companies act 61 of 1973 (the act), or that they are entitled to bring [the] action in their own name. ..... [8] an application for amendment will always be allowed unless it is made mala fide or would cause prejudice to the other party which cannot be compensated for by an order for costs or by some other suitable order such as a postponement.5an amendment would cause prejudice if, for example, its effect would be to deprive the other party to the action of the opportunity ..... until this point is authoritatively decided it would not be equitable [for it] to refuse the amendment on the basis that the liquidators did not have locus standi when they brought this action and thus that such action did not interrupt prescription. ..... . see also four towers investments, fn 5 para 16 and dumasi, fn 5 ..... . four tower investments (pty) ltd v andr s motors 2005 (3) sa 39 (n) para 15; dumasi v commissioner, venda police 1990 (1) sa 1068 (v) at 1071b; devonia shipping ltd v mv luis (yeoman shipping co ltd intervening) 1994 (2) sa 363 (c) .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the disparate treatment constituted discrimination and the appellants motives and objectives of the dress code are entirely irrelevant for this finding.3 [19] in the event, the appellants case distilled to simply that the discrimination was justifiable because it sought to eliminate the risk and anomaly posed by placing officers who subscribe to a religion or culture that promotes criminality in the form of the use dagga in control of a high regulation, quasi-military institution such ..... to wear them until december 2007 when he would shave his head as part of a cleansing ritual to complete the process. ..... respondents were charged with breaching the disciplinary code and procedure and the dress code by wearing dreadlocks on duty, alternatively failing to carry out a lawful order or routine instruction without just or reasonable cause by refusing to keep their hair in accordance with the dress code while on duty. ..... the decision of the labour court (cele j) that the dismissals of the second to sixth respondents (the respondents) were automatically unfair as contemplated in section 187(1)(f) of the labour relations act 66 of 1995 (the lra). ..... the commissioners attitude was that compliance with policy cannot be negotiated at management area and notwithstanding any religion, beliefs or otherwise, employees have to adapt to the employers policy and not the ..... dlamini v green four security [2006] 11 bllr 1074 (lc) para 40; cooper, carole the boundaries of equality in labour law (2004) 25 .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... ja expounded the salutary approach to the evidence of a single witness as follows: in r v t 1958 (2) sa 676 (a) at 678 ogilvie thompson aja said that the cautionary remarks made in the 1932 case were equally applicable to s 256 of the 1955 criminal procedure code, but that these remarks must not be elevated to an absolute rule of law. ..... he described a weal as similar to when a person has been dragged with his face or his naked flesh on the ground, leaving areas slightly open, others dark with blood, others completely closed and swollen with the interstitial fluid. ..... section 256 has now been replaced by s 208 of the criminal procedure act 51 of 1977. ..... found it highly improbable that the complainant, after being confronted about his unwelcome presence on the farm and being ordered to leave which he did peacefully and without any altercation or fight, would, some few hours thereafter, report at vaal police station to lay a charge against the appellant. ..... [35] having had the benefit of reading the record, i cannot find any fault with the reasoning and conclusion of the magistrate. ..... , read together with that of dr nyembe, counsel for the state contended that these are not so material as to affect the probative value of the complainants evidence; more so, if we take into account that the complainant testified four years after the incident. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the court a quo held that the appellant could be recharged on the same counts on which he had been acquitted and relied for that conclusion on s 324 read with s 313 of the criminal procedure act 51 of 1977 as well as on s v moodie 1962 (1) sa 587 (a) and s v naidoo 1962 (4) sa 348 (a). ..... judge, neither a conviction nor an acquittal on the merits and the accused person can be retried in terms of s 370(c) of the criminal procedure act 56 of 1955. ..... section 324 of act 51 of 1977 however permits the reinstitution of the criminal proceedings on the same charge when a conviction is set aside on the grounds that: (a) that the court which convicted the accused person was not competent to do so; or (b) the indictment on which the accused was convicted was invalid or defective in any respect; or (c) that there has been any other technical irregularity or defect in the procedure ..... in moodies case in which the irregularity of the deputy sheriff remaining closeted with a jury throughout their two hour deliberations was regarded as so gross as to vitiate the whole trial (at 354d-f). ..... the previous acquittal must have been on the merits, or to put it differently, that the accused must have been in jeopardy of conviction, means that, if the previous prosecution was vitiated by irregularity, then it cannot found a plea of autrefois acquit in a subsequent prosecution. ..... case s 370(c) of the code does not permit a retrial ..... granted leave to the appellant to appeal to this court on four main grounds namely 1. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [8] after having been amended in this way, from 31 december 2007 s 309(1)(a) of the criminal procedure act read as follows: (1)(a) any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 309b or 309c, appeal against such conviction and against any resultant sentence or order to the high court having jurisdiction: provided that (i) if that person was, at the time of the commission of the ..... act had been intended to protect the interests of children and that its provisions, including s 99(1), were of no application to adult offenders; and that therefore the automatic right of appeal enjoyed by an adult offender, such as the appellant when sentenced to life imprisonment by a regional court, had not been repealed. ..... [7] this position changed with effect from 31 december 2007 when s 52 of the cla was repealed by s 2 of the criminal law (sentencing) amendment act 38 of 2007 (the sentencing act) which, at the same time, amended s 51(1) of the cla to allow a regional court to impose life imprisonment on a person convicted of an offence referred to in part 1 of schedule 2. ..... consequently, when the matter came before the high court, his counsel most properly drew the courts attention to the decision in s v alam 2011 (2) sacr 553 (wcc), in which it had been held that, since 1 april 2010, an .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the ndpps argument, the withdrawal of the criminal charges in this case must also be understood against the background of s 6 of the criminal procedure act 51 of 1977 (the cp ..... two senior officers of the directorate of priority crime investigation (the hawks), colonel roelofse and lieutenant-colonel viljoen, were appointed to assist in the renewed investigations and mdluli came to be arrested on these charges to which i shall refer as the murder and related charges ..... the power to institute and conduct criminal proceedings is given legislative expression in s 20 which provides: (1) the power as contemplated in section 179(2) and all other relevant sections of the constitution to (a) institute and conduct criminal proceedings on behalf of the state; (b) carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and (c) discontinue criminal proceedings, vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the ..... the review application came before murphy j who granted an order (a) setting aside the four impugned decisions as well as (b) the mandatory interdict sought together with (c), an order for costs in favour ..... as to the legal principles involved, it has by now become well established that when a statutory provision requires a decision-maker to act in consultation with another functionary, it means that there must ..... is a completely different case ..... governs these proceedings cannot be avoided in these .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [2] in terms of the provisions of s 309b of the criminal procedure act 51 of 1977 the appellant applied for leave to appeal against the convictions and the sentences imposed ..... we were referred to two instances in which the manner in which this magistrate conducted trials was of sufficient concern to the high court to warrant it referring the matter to the magistrates commission.15in ndlangamandla pienaar aj, when referring to the conduct of this particular magistrate, said: this is a situation that cannot be allowed to continue and thereby bring the administration of justice into disrepute. ..... were to pass in a case such as the present, the law required that the person who was to hold the article concerned on behalf of the intended new owner had to be in control thereof, or have the right to control, when the owner of the article ceded his rights in respect thereof to the intended new owner. ..... there is in the instant matter no documentary or viva voce evidence as to when the instalment sale agreement was ceded to bankfin. ..... such contemptuous conduct cannot be sanctioned by this court ..... if i loose you in the crowd i cannot be blamed for it sir. ..... [17] in s v rall12trollip aja set out the standards expected of a presiding officer when he or she poses questions of witnesses. ..... the appellants attorney admitted on his behalf that this cession took place, but no evidence was led as to when such cession took place. ..... it is only when prejudice is caused to an accused that intervention will become an .....
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