One of most prominent cases of poor police investigating was the acquittal six years ago of Cape Town statistician Fred Van der Vyver, accused of murdering his young student girlfriend in Judge Anton Veldhuizen found that evidence brought forth in the month trial was so weak that the case really should never have been brought to court. He was critical of two police officials, one for being "negligent and reckless" in gathering fingerprint evidence at the crime scene, and the second for his investigation of a bloody shoe print which the officer knew had been discounted by an expert but did not pass this information to his colleagues or the director of public prosecutions.
At the time, forensic scientist David Klatzow, who worked for the defence team, said Mr Van der Vyver's case was not isolated. What seemed incredible to some in the Oscar Pistorius case was the revelation on day three of his bail hearing that chief investigator Detective Hilton Botha was facing reinstated accusations of attempted murder for allegedly shooting dead passengers in a minibus taxi in He has now been replaced following the intervention of South Africa's police chief in what appeared to be a damage control exercise.
But Mr Surju says it is not an unusual situation for the police. If they are not suspended, they continue working. Leading South African crime expert Antony Altbeker says it may seem like a "PR disaster", but the charges against Det Botha are unlikely to influence the outcome of any murder trial. It is whether he produces the evidence, not that he is under investigation," he said.
A similar scrutiny process is followed in the NCOP. Under section 79 of the Constitution, a Bill must be signed by the President. If the President has any reservations about the constitutionality of a Bill, they will refer it back to the National Assembly for reconsideration. Under section 81 of the Constitution, a Bill, once signed and assented to by the President, becomes an Act of Parliament and must be promptly published.
The Act of Parliament takes effect on the date of publishing or on any other date determined under the Act. Is there a procedure by which the judiciary can review legislative and executive actions? The Constitution establishes a concept of justiciability, under which the courts have the power of judicial review. Section 2 of the Constitution read together with section states that judicial authority vests in the courts, which are independent, and subject only to the Constitution.
Accordingly, a court order binds all persons and state organs to which it applies. Therefore, the judiciary has the power to deem legislation and executive members' conduct inconsistent with the Constitution and to strike such legislation or conduct down. Under section of the Constitution, provided that the court has jurisdiction to do so, a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.
In addition, under section 33 of the Constitution, everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
The Promotion of Access to Justice Act 3 of was enacted to give effect to section 33 of the Constitution, under which administrative actions can be reviewed by a court. In addition to the courts, the provisions of the Constitution can also be enforced by "Chapter 9 institutions" set up under Chapter 9 of the Constitution.
The aim of the Chapter 9 institutions is to strengthen and promote constitutional democracy. Chapter 9 institutions include, among others, the:. Office of the Public Protector. Chapter 9 institutions are independent, subject only to the Constitution and the law. These institutions must be impartial and exercise their powers, obligations and functions without fear, favour or prejudice.
Therefore, Chapter 9 institutions provide a check and balance on the manner in which the three branches of government exercise their powers and functions. Ordinary citizens can also lobby the government to pressure the government into giving effect to their rights.
Are certain emergency powers reserved for the executive? Section 37 of the Constitution regulates states of emergencies. A state of emergency can only be declared through an Act of Parliament State of Emergency Act 64 of A state of emergency is officially declared through its publication in the Government Gazette , which sets out the reasons and contemplated measures for the state of emergency. A state of emergency can only be declared when both the:. Life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency.
Declaration of a state of emergency is necessary to restore peace and order. A state of emergency cannot be declared retrospectively.
A state of emergency is only effective for 21 days from the date of declaration, but the National Assembly can extend the state of emergency. Such an extension cannot be for more than three months at a time. The first extension requires the support of the majority of the National Assembly. A resolution for the extension of a state of emergency can only be adopted after a public debate has taken place in the National Assembly. However, under section 37 3 of the Constitution, any competent court can decide on the validity of:.
A declaration of the state of emergency. Any legislation made or other action taken in consequence of such a declaration. Certain human rights are non-derogable during a state of emergency, such as the rights to equality, life and dignity.
Ultimately, the declaration of a state of emergency is justiciable. In other words, the courts have powers to ensure that the constitutional requirements are met. The jurisdiction of the courts during a state of emergency cannot be excluded. The threat or danger must be of sufficient nature and gravity to justify the declaration of state of emergency.
Once the justification for a state of emergency ends for example, peace and order is restored the state of emergency must end.
There is therefore a justiciable requirement of "necessity". Justiciability here refers to the fact that all the requirements for a declaration of a state of emergency must be met.
A competent court has the necessary jurisdiction to decide on the validity of a declaration of a state of emergency or the extension thereof. The requirements and conditions to justify a declaration of a state of emergency must be demonstrated before a court. If the ordinary law of the land is sufficient in the circumstances to accomplish the restoration of peace and order, then the declaration of a state of emergency will not be justified.
Are human rights constitutionally protected? Given the atrocities committed in the history of South Africa, human rights and their protection are fundamental to the country's democratic system.
South Africa recognises human rights as inalienable rights that a person is born with. The Bill of Rights Chapter 2 of the Constitution has been described as the cornerstone of democracy in South Africa, as it enshrines the rights to which all South Africans as well as those living within the borders of South Africa and to whom protection is afforded are entitled. These include, most importantly, rights to human dignity, equality and freedom, as well as rights to privacy and various other rights.
The rights contained in the Bill of Rights can only be limited in accordance with section 36 of the Constitution. Section 36 is the limitation clause of the Constitution under which it is recognised that constitutional rights are not unlimited and, accordingly, certain rights can be limited when giving effect to certain social interests.
Section 36 sets out the terms under which the justifiability of a limitation can be assessed. Only a law of general application can limit a constitutional right. An example of such a limitation is the right to freedom of movement, which is a right that can be curtailed by imprisonment.
However, the imprisonment of convicted persons represents a justifiable limitation. The South African Human Rights Commission has been established as a national institution to support constitutional democracy, with a mandate to promote respect for and the observance of the protection of human rights for everyone.
By what means can the constitution be amended? The Constitution is amendable, but the provisions are entrenched and therefore Parliament is prevented from amending the Constitution without following special procedures and obtaining a special majority in Parliament.
Although it is possible to amend the Constitution, achieving such an amendment is difficult, given that the basic constitutional structure is not subject to lawful amendments unless both:. There is close to unanimous consent in Parliament. The proposed changes do not alter the spirit of the Constitution. Under section 74 of the Constitution, the special parliamentary majority required for an amendment depends on the section to be amended.
Parliament is prevented from amending the Constitution without following the special procedures and meeting the majority required by the Constitution, as follows:. Amendments to most of the Constitution require a two-thirds majority in the National Assembly.
Legal system Form. According to a report by the South African Law Commission in the s, the practice of trial by jury in South African courts gradually decreased throughout much of the early 20th century. A amendment to that law authorized the Minister of Justice to order a trial be held without a jury for certain cases.
By the time the Abolition of Juries Act 34 abolished the jury system completely in , trials by jury had largely fallen out of use. Trials by jury in South Africa were replaced with the use of assessors — law experts who assist the judge hearing the case.
According to Van der Merwe, the two assessors could potentially overrule the judge when it comes to a verdict based on the facts of the case. But when it comes to sentencing, the judge has the final say over the assessors. The Pistorius trial was recently adjourned until April 7 due to an illness afflicting one of the assessors. Proof and Defenses in Criminal Cases. Getting a Lawyer for your Criminal Case. Steps in a Criminal Defense Case. Arraignment: Your First Court Appearance.
Plea Bargains in a Criminal Case. Legal Elements of Common Crimes. Expungement and Criminal Records. Should I just plead guilty and avoid a trial? Is the public defender a real lawyer? Can I change defense lawyers after I've hired one?
How long after arrest do I find out what the charges are?
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