Browsing by Author "Leeman, I"

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    A comparative examination of the extent to which the South African and the English legal systems recognize the defence of provocation in homicide cases
    (1993) Ackermann, Leon Keith; Leeman, I
    On charges of murder or assault, it often appears that the accused's aggression was immediately preceded by provocative behaviour e.g. taunts or insults by the victim which induced anger or rage in the accused and which gave rise to his aggression. The present study aims to address the question whether, in South African law, a defence is available to an accused in such cases. Since the issue of provocation in South African law usually arises in homicide cases, this study will be restricted to such cases. It will be shown that, during the past couple of decades, the South African law relating to provocation has undergone significant development. In 1925, the Appellate Division declared s 141 of the Native Territories Penal Code to be an accurate reflection of the South African law relating to provocation. In terms of this section, provocation could operate as a partial defence on a charge of murder: where an accused successfully raised the defence he would be convicted of culpable homicide. Recently, however, it has become clear that provocation may operate as a complete defence, resulting in an accused leaving the court as a free person. It will be argued that the above development reflects a general shift in our law, starting in the 1950's, from a policy-based to a principle-based approach to criminal liability.
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    A socio-cultural and comparative analysis of the doctrine of mistake in crimes requiring intention
    (1993) Wolhuter, Lorraine; Leeman, I
    Academics have often been criticised for their preoccupation with theoretical abstraction and logical deduction and their concomitant failure to address issues of practical importance or exigency. It must therefore be stated at the outset that the recommendations contained in this paper are not confined to a theoretical analysis of the doctrine of mistake. Per contrast, they are motivated by a genuine concern on the part of the writer to alleviate the present discord between South African criminal legal theory and socio-cultural reality. These recommendations are premised upon the advantages of the reception of the normative approach to criminal liability in South Africa, and they have been iterated elsewhere l by the writer in the context of, inter alia, the defence of necessity. The submissions that constitute the core of this paper must, however, be regarded as subject to the following qualification. A successful reception of the normative approach necessitates a change in the existing power relations that are operative in South African courts. To leave its application to the presiding judge and assessors would be to give them the freedom to inflect their decisions with their personal values and prejudices. It has been argued elsewhere2 by the writer that this problem may possibly be solved by the reintroduction of the jury system, suitably loaded to cater for the interests operative in the case. Sustained reflection and exposure to the exigencies of practice has, however, yielded the conclusion that the difficulties that accompanied the jury system and the suspicion with which it was viewed, outweigh any advantages that its re-introduction may have. A possible alternative, and one which, it is submitted, would work well in practice, is the increased use of expert witnesses at the stage prior to conviction, provided that they are suitably qualified (either formally or informally) to adduce evidence on the socio-cultural matrix of relations in which the accused in question lives and moves. In the context of mistake of law, for example, evidence concerning, inter alia, the level of legal knowledge and general education in a particular community could be adduced by persons who are either long-standing members or active participants in the socio-cultural life. of such community. The theoretical views and preferences expressed in this paper should thus be read with the above-mentioned practico-social problems in mind.
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    'Extenuating circumstances' in the South African law of murder
    (1980) Evans, Stanley; Leeman, I
    The concept of statutory "extenuating circumstances" was' introduced into the South African criminal law of murder. 1935 in _tile use of those two words alone. It was left to the course, without any further legislative aid, to provide the definition, structure, and development of the concept. Over the· period of more than forty years there has been), ·no -written attempt to survey or deal at any length this development. Beside legal textbooks which give some brief rough grouping of certain of the cases . I (E.M PM A Hunt, South African Criminal law and procedure, Volume II allo6ates ten pages - the most detailed textbook handling of the matter so far there have been two , -c ' articles 1.n law journals ( one by ,the present writer in 195·5 and Loubser in 1977) which have attempted a form· 9f analysis or development of the subject. This thesis is in the nature of, pilot study along a certain line approach in an attempt to order the appropriate material. No entry has been made into the discussion of the substantive legal concepts in the law of murder or any ease of contention there, even though these may have been referred to in passing. Rather have the generally accepted '/ statements of the substantive law been accepted. What i's sough to be dealt with is the limited area of the relevance application of certain considerations appropriate only to the :sentencing function in cases where an accused is found guilty: if murder in South Africa. But even this limited·· .ficid of study has a dynamic broadness about it which ass6ciates with other disciplines such as ethics, anthropology, psychiatry and other psycho-social sciences.
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    Legal representation and a Bill of Rights
    (1993) Lawrenson, Natalie Carina; Steytler, N C; Leeman, I
    The right to legal representation has been acknowledged as a fundamental right of an accused in a criminal trial. 1 Traditionally, however, this, right has been viewed as a right to retain counsel, rather than a positive right to be provided with legal representation in the case of indigent accused. The importance of legal assistance for accused persons being tried in an adversarial justice system has been recognised in the Anglo-American legal systems. In an adversarial system the duty of a presiding officer is to act as an independent and objective adjudicator of the facts and evidence presented to him or her by the two parties to the trial. The onus is on the litigants to advance their own case. It naturally follows that the strength of a party's case depends on the skill of the litigator.
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    The Defence of Superior Order: a comparison of the legal situation in Germany, the United States of America and South Africa
    (1998) Ertner, Ralph M; Leeman, I
    In most of the situations where is more than one person involved one person is superior to the other. The father is superior to his child, the employer is superior to the employees, the captain is superior to his team or the general is superior to his soldiers. If there is a task to be carried out, any person may carry this task out on grounds of free will. But if the person does not want to carry out this task, then the superior may order him to do so. But what happens if the task carried out after such an order been given proves to be wrong? What if it even fulfils the definition of the crime? The ordered person may be accused of committing a crime and then may say: "But I was ordered to do so. Blame my superior but not me!" This dissertation will deal with the legal background of this "defence" raised by the accused. It will compare the three different legal systems of Germany, the United States of America and South Africa to determine on which grounds a superior order given prior to the act can serve as a basis for a defence. The three legal systems, the history, the acceptance by the courts and all the prerequisites established in the course of decades of jurisprudence will be analysed in order to establish a scheme under which these countries deal with superior orders being involved prior to a crime or offence committed by the receiving inferior.
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    The development of the doctrine of common purpose subsequent to the judgement in S v Safatsa 1988 1 SA 868 (A): with specific reference to the general principles of criminal liability
    (1993) Combrinck, H; Leeman, I
    The doctrine of common purpose, which hails from English law, was introduced into South African law via the Native Territories Penal Code. The first South African criminal case in which this doctrine was applied outside the field of application of the abovementioned act, was Ry Garnsworthy, where it was formulated as follows: Where two or more persons combine in an undertaking for an illegal purpose, each one of them is liable for anything done by the other of others of the combination, in the furtherance 'of their object, if what was done was what they knew or ought to have known, would be a probable result of their endeavoring to achieve their object.5 According to Visser and Vorster,6 this doctrine was probably imported into our law due to difficulties experienced in 1 D XLVIII.8.17: 'If a man dies after having been struck in the course of a quarrel, the blows of every one who took part in this should be investigated' - own translation. 2. Section 78 of the Native Territories Penal Code Act 24 of 1886 (C) provided: 'If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been, known to be a probable consequence of the prosecution of such common purpose.' (Quoted in Rabie "The doctrine of common purpose" (1971) SALJ 229.) See also R v Taylor 1920 EDL 318 323.