Browsing by Author "van Zyl Smit, Dirk"

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    About the constitutionality of mandatory minimum sentences
    (1995) Oppert, Anna; van Zyl Smit, Dirk
    As difficult as the task of reaching a reliable verdict may be, the second half of a criminal court's procedure, that of imposing sentences on those who have been found guilty or who have themselves admitted their guilt raises even more fundamental questions. What are we trying to do, what is the object of this exercise? Traditionally there have been four approaches to the sentencing of an offender which correspond to the four "objects" or "purposes" of sentencing, namely retribution, rehabilitation, deterrence or incapacitation, i.e. the offender should be punished for the crime; the offender should be punished to be given the opportunity to return "onto the right track"; the offender (individual deterrence) or others (general deterrence) should be deterred from committing similar crimes in the future; and, finally, the offender should be incapacitated, i.e. be prevented from repeating crimes.
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    Die geheueverfrissingsprosedure
    (1988) van der Merwe, Stephan Erasmus; van Zyl Smit, Dirk
    The English common law of evidence assigns great importance to the principle of orality in the adjudication of disputes; insists, generally speaking, that a witness' oral statement in court (as opposed to his earlier written account) is the proper evidence; requires that a witness -should as a rule give independent oral testimony, i e, without the aid of a record (note, document, memorandum); acknowledges the inevitability of a witness being unable to recall the relevant event (or some details thereof); accepts the necessity of "memory refreshing'' as a means of promoting the accuracy of recall or obtaining evidence which might otherwise be lost; regards the procedure of refreshing the memory of a witness as perfectly compatible with the principle of orality which is such a marked characteristic of the accusatorial trial system; denies the usefulness - but not necessarily the validity - of Wigmore's fundamental distinction between ''present recollection revived" and "past recollection recorded"; and, further, maintains that oral evidence is received even where the witness has no independent recollection, i e, where he relies solely on his earlier recorded recollection. Legislation - locally and abroad - has amended some of the above principles or conceptions of the common law, most notably the principle that the earlier out of court written statement of the witness may as a rule not be received and, when received, may not be treated as an item of evidence. Part VI of the Civil Proceedings Evidence Act 25 of 1965 (as read with section 222 of the Criminal Procedure Act 51 of 1977) gives effect to the valid argument or consideration that the written statement of a witness may, depending upon circumstances, be more accurate than his later recollection in court. But Part VI contains strict conditions upon which such earlier record may be received as documentary evidence. Occasions may therefore still arise where the common law procedure of refreshing the memory of a witness should be followed. Documents used for the purpose of refreshing the memory of a witness, are not necessarily admissible as evidence in terms of Part VI. And even where a document is admissible in terms of Part VI, there might be good tactical reasons , why a party would prefer to attempt to refresh the memory of his witness, as opposed to merely resorting to reliance upon Part VI. One central issue examined in this thesis, is whether the distinctign between present recollection revived and past recollection recorded is valid and, further, whether this distinction is useful in dealing with problems concerning the common law procedure of refreshing the memory of a witness. ''Present recollection revived" (herinneringsherlewing) refers to the situation where the witness' memory is stimulated so that he can actively recall the forgotten events and testify independently from the written source which merely acted as a trigger. "Past recollection recorded'' (herinneringsherhaling) refers to the situation where the witness, even after consulting the written source, cannot testify from memory and can only vouch for the accuracy and reliability of the written source. An attempt is also made to determine whether the aforementioned distinction can be reconciled with the rules and principles of the common law trial and evidentiary system.
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    The German code of crimes against international law in context of international criminal law: can its penalty system serve as model for the international criminal court?
    (2004) von Bismarck, Margarethe Sophie; van Zyl Smit, Dirk
    A new millennium has recently begun and with it a new era in International Crimin_al Law. Since 1 July 2002, an International Criminal Court (ICC) in The Hague has been able to hold individuals responsible for human rights violations. In the era of globalisation the world acts more and more on an international level and globalisation has also adopted a high significance in international crime. Never has the international crime rate been as high as nowadays and there is anything but an end in sight. Thus, the need for international criminal prosecution increases. The establishment of ad hoc tribunals as an answer to the commited atrocities of the most terrible wars in the last century has shown that it is possible to prosecute the responsible individuals. Intervention is more than necessary. But while these ad hoc tribunals had to be established under certain circumstances, the ICC now offers a new and stable way to try international crimes before a global acknowledged court.
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    Witnesses in South Africa, the stepchildren of the criminal justice system
    (1999) Steyn, Esther; van Zyl Smit, Dirk
    In South Africa the criminal justice system is primarily controlled by the Criminal Procedure Act1 and its application in the criminal process. The introduction of a justiciable Bill of Rights2 on 27 April 19943 ushered South Africa into a new legal and constitutional dispensation, which in tum affected the criminal justice system profoundly. In fact the criminal process has undergone an intense metamorphosis as a result of the introduction of the Bill of Rights. Witnesses and victims of crime have not escaped the impact of the Constitution on the criminal justice system. Their rightful place in the criminal justice process is the subject of this thesis.