Title page for ETD etd-09132012-180522


Document Type Master's Dissertation
Author Mare, Ruan
Email ruan.mare15@gmail.com
URN etd-09132012-180522
Document Title The constitutional validity of section 78(1B) of the Criminal Procedure Act 51 of 1977 with regard to section 9 of the Constitution of the Republic of South Africa, 1996
Degree LLM
Department Public Law
Supervisor
Advisor Name Title
Prof P A Carstens Supervisor
Keywords
  • unconstitutional
  • unfair discrimination
  • Canadian law
  • equality
  • criminal capacity
  • pathological criminal incapacity
  • constitutionality
  • Constitution of the Republic of South Africa
  • equality before the law
  • Criminal Procedure Act
  • section 78(1B)
  • section 78(1A)
  • severance
  • psychiatry
  • psychology
  • expert evidence
  • justification
  • mental defect
  • mental illness
Date 2012-04-11
Availability unrestricted
Abstract
This study evaluates the constitutionality of section 78(1B) of the Criminal Procedure Act 51 of 1977 (CPA), which places the burden of proving criminal capacity on the party who raises the issue, against section 9 of the Constitution of the Republic of South Africa, 1996 (CRSA). In a legal system such as ours, that has a high regard for equality, any form of unequal treatment must be scrutinised, assessed and, if found to be unjust, rooted out. Even more so where the unequal treatment affects a marginalised minority group such as the mentally disabled.

This study weighs section 78(1B) against section 9(1) of the CRSA. It also weighs the section against section 9(3) of the CRSA. Attempts are made to justify possible infringements according to section 36 of the CRSA. An appropriate remedy is then ascertained.

This study also provides the historical development of section 78(1B) of the CPA both in the common law and statute.

This study furthermore provides original guidelines and principles in assessing expert evidence where criminal capacity is placed in dispute due to a mental illness or defect of the accused.

The main findings are that section 78(1B) infringes on both section 9(1) and section 9(3), that it cannot be justified in terms of section 36 of the CRSA and that the appropriate remedy is the striking out of the whole section from the CPA.

Copyright 2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Mare, R 2011, The constitutional validity of section 78(1B) of the Criminal Procedure Act 51 of 1977 with regard to section 9 of the Constitution of the Republic of South Africa, 1996, LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-09132012-180522/ >

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