Shannon Hoctor
University of KwaZulu-Natal, Faculty of Law, Faculty Member
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Research Interests: Supreme Court and Appeal
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In the Constitutional Court judgment of S v Thunzi and Mlonzi 2010 (10) BCLR 983 (CC) the court had to deal with a consequence of constitutional transition: 'incongruities and anomalies' that were bound to arise from the... more
In the Constitutional Court judgment of S v Thunzi and Mlonzi 2010 (10) BCLR 983 (CC) the court had to deal with a consequence of constitutional transition: 'incongruities and anomalies' that were bound to arise from the integration of the separate legislative regimes in the former TBVC (Transkei, Bophuthatswana, Venda and Ciskei) states (at para [4]). The court noted that there were 'two identical statutes in the same national territory, dealing with the same subject-matter and designated by the same act number and year': the national Dangerous Weapons Act 71 of 1968 (SA) and the Dangerous Weapons Act 71 of 1968 (Transkei) (at para [4]). The difference between the two statutes was that in terms of section 4 of the Transkei Act, a harsher sentencing regime was applicable (at para [11]). Although the matter was not fully argued before them, the Constitutional Court questioned the constitutionality of the dual systems, raised the question whether there was not a constitutional obligation on Parliament to establish uniform legislation, and ultimately required Parliament to notify the court of steps it had taken to rationalise the situation into uniform national legislation (at paras [65]-[72]. See also the Memorandum on the Objects of the Dangerous Weapons Bill, 2012 at 5 (GN 606 in GG 34579, 2010/09/02)).
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The problems related to curbing the poaching of abalone are legion. First, abalone is an easily accessible target. Sedentary in nature, occurring in shallow subtidal kelp beds rarely deeper than ten metres, growing slowly (taking 8-9... more
The problems related to curbing the poaching of abalone are legion. First, abalone is an easily accessible target. Sedentary in nature, occurring in shallow subtidal kelp beds rarely deeper than ten metres, growing slowly (taking 8-9 years to reach minimum legal size) and non-cryptic in behaviour, abalone presents little difficulty for exploitation (Houthoofd “Towards Some Solutions Relating to the Conservation of Abalone” 1997 4 SAJELP 301; and Hauck “Regulating Marine Resources in South Africa: The Case of the Abalone Fishery” 1999 Acta Juridica 211 212). Secondly, the authorities have struggled in the face of the systematic depletion of the abalone stocks. Conservation operations such as Operation Neptune, aimed at combating the poaching, have been largely unsuccessful (see Botha “See Weer Stropers se Speelplek” 23 December 2004 Die Burger 13). This state of affairs is not entirely surprising, given the limited resources on the part of the State, further hampered by bribery of co...
Some fifteen years ago, Beck CJ stated in a Transkeian culpable homicide case that the need to reflect the concerns of the community about the rate of fatal collisions on the roads by avoiding “undue leniency in punishing drivers who are... more
Some fifteen years ago, Beck CJ stated in a Transkeian culpable homicide case that the need to reflect the concerns of the community about the rate of fatal collisions on the roads by avoiding “undue leniency in punishing drivers who are negligent or reckless has never been greater” (S v Mncunza 1990 2 SACR 96 (Tk) 98c). It is submitted that nothing has changed in the interim and, if anything, these words resonate even more today in the context of the plague of death on this country’s roads. Society expects the courts to protectinnocent road-users by imposing appropriately severe sentences, including imprisonment, on offenders who drive grossly negligently or recklessly (S v Birkenfield 2000 1 SACR 325 (SCA) par [9]). In the case of S v Nyathi, the Supreme Court of Appeal was presented with the opportunity to address these concerns.
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The nature of consent, and its ambit and operation as a criminal law defence, remains somewhat unclear (see De Wet De Wet en Swanepoel Strafreg 4ed (1985) 94). This is not surprising, given the fact that the assessment of whether consent... more
The nature of consent, and its ambit and operation as a criminal law defence, remains somewhat unclear (see De Wet De Wet en Swanepoel Strafreg 4ed (1985) 94). This is not surprising, given the fact that the assessment of whether consent is present is largely determined on the basis of public policy. Unlike other justification grounds which indicate that, all things considered, the conduct in question was the right thing to do (eg defence), consent “embodies a recognition that the autonomy of the other person (‘victim’) is involved, and that if that person agrees to the conduct there should be no offence” (Ashworth Principles of Criminal Law 3ed (1999)331). Recognizing a defence of consent involves taking the individual will into account, in allowing individuals “to assume those consequences that they took into account when they adopted the decision; that is, in permitting them to incorporate these consequences into the course of their lives” (Nino The Ethics of Human Rights (1991) ...
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The history and functioning of the common law crimes of violating a grave and violating a dead body are discussed in the context of their continued role in modern South African society. It is submitted that these crimes remain both useful... more
The history and functioning of the common law crimes of violating a grave and violating a dead body are discussed in the context of their continued role in modern South African society. It is submitted that these crimes remain both useful and a significant indicator of the boni mores, and indeed that the rationale for their continued existence has been bolstered by the infusion of constitutional values intocriminal law jurisprudence.
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The judgment of Theron J in the recent case of S v Mostert has raised some interesting questions about the nature and content of the defence of obedience to orders (which will be referred to interchangeably with the alternative... more
The judgment of Theron J in the recent case of S v Mostert has raised some interesting questions about the nature and content of the defence of obedience to orders (which will be referred to interchangeably with the alternative appellation “superior orders” in the discussion which follows), and the ambit of the common-law crime of crimen injuria.
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The sentencing of an offender is not determined in a vacuum. Certain guidelines and principles have been developed that should be applied in every case: the circumstances of the case; the severity of the crime; mitigating and aggravating... more
The sentencing of an offender is not determined in a vacuum. Certain guidelines and principles have been developed that should be applied in every case: the circumstances of the case; the severity of the crime; mitigating and aggravating factors regarding the offender; the interests of society; and the purposes of sentencing specifically deterrence, prevention, rehabilitation and retribution, as well as mercy. The focus of this note is only on a single aspect of the sentencing equation, specifically the extent to which the advanced age of the offender constitutes a possible mitigating factor. Although much has been written regarding youthful offenders, very little jurisprudence exists on the impact of age on persons on the opposite side of the age spectrum. This can be partly attributed to the fact that the elderly in general commit fewer crimes and that there are fewer appeals noted and reported on as age has been taken into consideration during sentencing. The note commences with ...
Extracted from text ... 429 CASES / VONNISSE DEALING WITH DEATH ON THE ROADS S v Nyathi 2005 2 SACR 273 (SCA) 1 Introduction Some fifteen years ago, Beck CJ stated in a Transkeian culpable homicide case that the need to reflect the... more
Extracted from text ... 429 CASES / VONNISSE DEALING WITH DEATH ON THE ROADS S v Nyathi 2005 2 SACR 273 (SCA) 1 Introduction Some fifteen years ago, Beck CJ stated in a Transkeian culpable homicide case that the need to reflect the concerns of the community about the rate of fatal collisions on the roads by avoiding "undue leniency in punishing drivers who are negligent or reckless has never been greater" (S v Mncunza 1990 2 SACR 96 (Tk) 98c). It is submitted that nothing has changed in the interim and, if anything, these words resonate even more today in the context ..
Research Interests: Psychology and Reference
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Despite precedent sanctioning this approach (S v Van Zyl 1969 (1) SA 553 (A) at 557B-C), there has until recently been considerable prosecutorial reluctance to charge those who have caused death on the roads with murder. However, in two... more
Despite precedent sanctioning this approach (S v Van Zyl 1969 (1) SA 553 (A) at 557B-C), there has until recently been considerable prosecutorial reluctance to charge those who have caused death on the roads with murder. However, in two recent High Court cases, S v Qeqe [2011] 3 All SA 570 (ECG) and S v Humphreys 2012 JDR 0277 (WCC), murder convictions were obtained where the accused drove with disregard for the lives of others on the road, and by their actions caused the death of child pedestrians and the death of children who were passengers in the accused's vehicle, respectively. Central to these convictions was the concept of dolus eventualis, the form of intention which does not reflect the aim and object of the accused (this is direct intention or dolus directus) but rather where the accused 'foresees the possibility of the circumstance existing or consequence ensuing and proceeds with his or her conduct' (JM Burchell South African Criminal Law and Procedure Vol I:...
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The criminal justice system was an important mechanism for enforcing apartheid. It criminalised behaviour that in a democratic society would simply be considered the exercise of basic rights, such as choosing whom to marry, where to live,... more
The criminal justice system was an important mechanism for enforcing apartheid. It criminalised behaviour that in a democratic society would simply be considered the exercise of basic rights, such as choosing whom to marry, where to live, work and play. Draconian security and emergency laws allowed the state to silence dissent : permitting indefinite detention without trial or denying access to legal representation. The concept of equality was devoid of any substantive content. The common law remained in place and gave the criminal justice system a veneer of respectability. However, for the majority of South Africans this was not sufficient to legitimise it.
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The crime of defamation, known as criminal libel in some jurisdictions, has(along with associated "insult laws") been identified in the 2007 Declaration of Table Mountain of the World Association of Newspapers and News... more
The crime of defamation, known as criminal libel in some jurisdictions, has(along with associated "insult laws") been identified in the 2007 Declaration of Table Mountain of the World Association of Newspapers and News Publishers as the "greatest scourge of press freedom on the continent" (http://www.wan-ifra.org/articles/2011/02/16/the-declaration-of-table-mountain, accessed 2013-01-31). The Declaration proceeds to call for the abolition of such laws as a matter of urgency.
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This subject has proved to be a source of fascination for many, and a source of intense debate in both psychological theory and jurisprudence for over two centuries (for a perspective on hypnosis and the competing theories seeking to... more
This subject has proved to be a source of fascination for many, and a source of intense debate in both psychological theory and jurisprudence for over two centuries (for a perspective on hypnosis and the competing theories seeking to explicate this phenomenon in the context of a 19th century homicide, see Harris "Murder under Hypnosis" 1985 15 Psychological Medicine 477), largely because of one controversial issue : can a person be induced to commit acts which are against his or her normal prudence and moral standards by means of hypnosis (or its historical antecedent, mesmerism)? The mysterious power of hypnotic coercion has moreover been absorbed into the popular consciousness, as reflected by the issue frequently featuring in fiction.
Research Interests: Psychology and Reference
The three appellants in S v Pakane and others 2008 (1) SACR 518 (SCA) were police officers who had been convicted on charges of murder (the second appellant), being an accessory after the fact to murder (the first and third appellants),... more
The three appellants in S v Pakane and others 2008 (1) SACR 518 (SCA) were police officers who had been convicted on charges of murder (the second appellant), being an accessory after the fact to murder (the first and third appellants), and defeating the ends of justice (the second appellant). A synopsis of the facts (along with a discussion of the appellants' liability in relation to the murder charge) can be found in Professor Reddi's discussion of this case supra, and will thus not be repeated. With regard to the charge of defeating the course of justice, the Supreme Court of Appeal (per Maya JA) confirmed the correctness of the approach of the court a quo in holding that to convict the first and third appellants of defeating the course of justice would amount to a duplication of convictions, as their convictions as accessories after the fact to murder were based on the same facts (at para [35]).
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The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) "housebreaking with the intent to commit a crime") are inexorably bound up... more
The origins of the housebreaking crime (for the sake of brevity this term will be used throughout this note, rather than the bulkier (but more accurate) "housebreaking with the intent to commit a crime") are inexorably bound up with the need to protect the dweller in his or her abode (see Hoctor "The Historical Antecedents of the Housebreaking Crime" 1999 Fundamina 97 101). From the earliest times the interest of a person in the safe and private habitation of his home has been treated reverently and regarded as deserving of special protection by the law (Dressler Understanding Criminal Law (1987) 223). This concern is reflected by the fact that common-law jurisdictions have typically classified housebreaking as a crime against the habitation (Perkins and Boyce Criminal Law (1982) 246), which implies the right to "feel secure in one's own home" (Maddan "Burglary: The Law" in Wright and Miller (eds) Encyclopedia of Criminology Vol I (2005) 1...
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The court noted the need to engage in inferential reasoning in establishing intention, and cited the cautionary injunctions in the cases of S v Sigwahla 1967 (4) SA 566 (A) and S v Lungile 1999 (2) SACR 597 (SCA) in this regard (at paras... more
The court noted the need to engage in inferential reasoning in establishing intention, and cited the cautionary injunctions in the cases of S v Sigwahla 1967 (4) SA 566 (A) and S v Lungile 1999 (2) SACR 597 (SCA) in this regard (at paras 6-8). Given the careful steps taken by the appellants to avoid detection, the court held that it could be inferred that the appellants did not foresee the possibility of detection (at para 14).
Research Interests: Psychology and Reference
Inchoate crimes have been categorized by Husak (see ''Reasonable Risk Creation and Over inclusive Legislation'' 1998 Buffalo Criminal LR 599 602-604) as either ''complex'' inchoate crimes, such as attempt,... more
Inchoate crimes have been categorized by Husak (see ''Reasonable Risk Creation and Over inclusive Legislation'' 1998 Buffalo Criminal LR 599 602-604) as either ''complex'' inchoate crimes, such as attempt, conspiracy or incitement (the equivalent of which is known as ''solicitation'' in US law, and ''counselling'' in Canadian law) and ''simple'' inchoate crimes such as housebreaking with intent, drunk driving and crimes of possession, where the crime serves as a means to punish an actor before a certain harm has been completed (see Zimmerman ''Attempted Stalking: An Attempt-to-Almost-Attempt-to-Act'' 2000 Northern Illinois University LR 219 228).
Research Interests: Psychology and Reference
In certain circumstances, certain drivers are authorised to drive with a blue light and siren flashing on a public road. Thus, in terms of regulation 308(1)(h) of the Regulations issued under the National Road Traffic Act 93 of 1996... more
In certain circumstances, certain drivers are authorised to drive with a blue light and siren flashing on a public road. Thus, in terms of regulation 308(1)(h) of the Regulations issued under the National Road Traffic Act 93 of 1996 (hereinafter "the Act") any person driving or having a vehicle on a public road is required to "give an immediate and absolute right of way to a vehicle sounding a device or bell or displaying an identification lamp in terms of section 58(3) or 60 or regulation 176". Section 58(3) permits the driver of emergency vehicles, a traffic officer, and duly authorised drivers, as well as, particularly pertinent to the discussion which follows, a "person appointed in terms of the South African Police Service Act ... who drives a vehicle in the carrying out of his or her duties" to disregard the directions of a road traffic sign displayed in the prescribed manner. There are two provisos: that such driver must drive the vehicle concern...
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Thus, it is clear that the perspective of the court is a policy-based assessment of the legal rules governing non-pathological incapacity based on provocation or emotional stress. It is unfortunate that the formal adoption of this... more
Thus, it is clear that the perspective of the court is a policy-based assessment of the legal rules governing non-pathological incapacity based on provocation or emotional stress. It is unfortunate that the formal adoption of this approach, however laudable the purpose underlying it, seems to have obscured and undermined the application of the existing legal rules. It is regrettable that the court did not simply state that the ambit of the defence of non-pathologieal incapacity was unacceptable, and that this necessitated a radical departure from the principles governing this area of the law, in order to bring it into line with the perceived community sentiment.2" Such judicial frankness would be commendable, whatever the merits of the enterprise. Instead, in attempting and, it is submitted, ultimately failing, to marshal existing authority in its cause, the judgment ushers in significantly more confusion than that which it purports to counteract. The grave implications of the ...
Extracted from text ... 76 NOTES / AANTEKENINGE REGULATION OF THE USE OF CCTV AS A CRIME PREVENTION TECHNIQUE? 1 Introduction Having been used for a number of years as part of the security apparatus of banks and stores, closed circuit... more
Extracted from text ... 76 NOTES / AANTEKENINGE REGULATION OF THE USE OF CCTV AS A CRIME PREVENTION TECHNIQUE? 1 Introduction Having been used for a number of years as part of the security apparatus of banks and stores, closed circuit television (CCTV) is increasingly becoming more prevalent on the streets of South Africa. CCTV monitoring takes place in a number of cities, including Johannesburg, Durban, Cape Town, Port Elizabeth and Pietermaritzburg. (My own interest in this matter derives from my involvement in the Justice Monitoring Project (JUMP), the brainchild of Prof Michael Cowling, which tasked students in 2004 to inter alia monitor ..
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Once a crime has been committed, full repentance and restoration do not have any bearing on liability (Simester and Sullivan Criminal Law: Theory and Doctrine (2001) 305), but may be taken into account in mitigation of sentence. (For a... more
Once a crime has been committed, full repentance and restoration do not have any bearing on liability (Simester and Sullivan Criminal Law: Theory and Doctrine (2001) 305), but may be taken into account in mitigation of sentence. (For a discussion of the concept of remorse in sentencing, in respect of which repentance and restoration may be strong indicators, see Terblanche A Guide to Sentencing in South Africa 3ed (2016) 229‒230). On the other hand, there is no question of criminal liability ensuing for an attempt at a crime if there is a withdrawal from the envisaged crime while still in the stage of preparation, and before, in South African law, reaching the watershed moment of the “commencement of the consummation” (S v Kudangirana 1976 (3) SA 563 (RA) 565‒566; Snyman Criminal Law 6ed (2014) 284; on the commencement of the consummation test, see Hoctor “The (Surprising) Roots of the Test for Criminal Liability for Interrupted Attempt in South African Law” 2015 SACJ 363). However,...
Dolus eventualis is manifestly the most important form of intention in practice in South African criminal law. It has received by far the most attention of all the forms of intention and is ""well-established, commonly invoked... more
Dolus eventualis is manifestly the most important form of intention in practice in South African criminal law. It has received by far the most attention of all the forms of intention and is ""well-established, commonly invoked and much analysed"". Since the South African courts embrace the psychological concept of culpability, in terms of which the question whether an accused has acted intentionally depends solely on his or her subjective state of mind, dolus eventualis forms a cornerstone of criminal liability.