Although the Constitution of the Republic of South Africa, 1996 guarantees everyone the right of access to courts and civil justice, many people still find themselves in a position where they cannot access the South African justice system, specifically concerning civil legal matters. While this problem has been recognised by various academics, authors, and even Constitutional Court judges, the understanding of what this right means empirically has only recently been understood in relation to South Africa’s civil justice system. This article, therefore, concentrates on the accessibility and effectiveness of South African civil courts. The focus is on civil lower courts given that most people who are exposed to the civil justice system do so by means of the Magistrates Courts only.

Cannabis sativa L. was brought to Africa by Arab traders, and has been cultivated for at least 5 000 years for many established medical and historical purposes. [1][2][3] Marijuana and hemp are colloquial names for cannabis strains of the same plant genus. Hemp is characterised by a low concentration of delta-9-tetrahydrocannabinol (Δ 9 -THC), the primary psychoactive compound in C. sativa, popularising hemp cannabidiol (CBD) oils, as the medical benefits can be obtained without the psychoactive effect of marijuana, the latter characterised by high concentrations of Δ 9 -THC.CBD demonstrates a decreased agonism of the CB-1 receptor compared with Δ 9 -THC, explaining the absence of psychoactive effects. [4] It is claimed that CBD can reduce the use of opioids owing to its antinociceptive effects in inflammation models, reducing heroin-seeking behaviour. [5][6][7][8] After numerous calls for legalisation from the South African (SA) public and activists, despite some caution raised by academics, [9,10] C. sativa access laws were passed, first by legalising the private use of cannabis, [11][12][13][14] and secondly, by amendments to the schedules of the Medicines and Related Substances Act No. 101 of 1965 (Medicines Act), [15] applying a threshold concentration approach for CBD and Δ 9 -THC.As with all crucial decisions, unforeseen consequences have created dilemmas. One of these is that hemp products and CBD oils are contaminated with Δ 9 -THC owing to unregulated cannabis plant strains, ineffective enrichment and purification procedures, inadequate analytical quality control and testing and known law enforcement constraints to ensure product compliance in SA. These factors were legitimate concerns before legalisation, and have This open-access article is distributed under Creative Commons licence CC-BY-NC 4.0.

In recent case law it became evident that private prosecutions might be the remedy to unprosecuted criminals in South Africa. South Africa recently obtained its very own private prosecuting unit when the human rights organisation AfriForum hired Advocate Gerrie Nel to join forces and to prosecute alleged criminals. In this discussion the fundamentals of private prosecutions in South Africa will be explored. The historical development and commencement of private prosecutions in a South African context will be explained with specific reference to case law from both the pre- and post-apartheid perspectives. The focus will then be on the decision of the Constitutional Court under discussion (“NSPCA case”) which will be elaborated on, explained and evaluated. In this case the question whether the Criminal Procedure Act 51 of 1977 discriminates against juristic persons arose. This aspect of the judgment will also be explored further. Lastly, some crime statistics in South Africa will be examined as well as whether private prosecutors can somehow assist the National Prosecuting Authority in their quest to prosecute all crimes and keep South Africans safe. The conclusion is that the NSPCA case is correct. The court found that the NSPCA has the legal capacity to prosecute. However, the court did not express itself on the question whether section 7(1)(a) of the Criminal Procedure Act is in accordance with the Constitution as it clearly discriminates against juristic persons by omitting them from the wording of the section. It is submitted that provision should be made to allow juristic persons to prosecute so that the capacity to prosecute privately in South Africa can be extended. Of course, juristic persons will also have to comply with the requirements of section 7(1)(a) and they will be able to prosecute only after a nolle prosequi-certificate has been issued to them by the National Prosecuting Authority.

Alcohol is well known for its ability to impair human faculties, which creates risks when driving a vehicle or when performing safety- and risk-sensitive tasks in workplaces. The article aims to highlight some shortcomings in the legal-scientific approach for alcohol testing in South Africa. In particular, we investigate the measurement uncertainty of blood alcohol test results, which is critical in adjudicating over-the-limit cases. The South African regulatory framework for alcohol testing in the criminal- and private-law environments is examined from an analytical due-process perspective, considering measurement uncertainty and other well-established scientific principles which are essential at the interface of science and law. Special attention is paid to the National Road Traffic Amendment Bill, which aims to decrease the alcohol limit to zero. We found that the measurement uncertainty concept has not yet been received into the South African legal system, even though it is a well-established scientific principle. We suggest changes to the current alcohol legislation to accommodate the measurement uncertainty principle and the related likelihood ratio, which we believe could assist in quantifying the odds of compliance. In particular, we believe that our suggestions regarding quantification and reporting of measurement uncertainty can assist the courts and tribunals to avoid false-positive errors that may have a devastating effect on innocent subjects.

Section 217(1) of the Criminal Procedure Act 51 of 1977 (the Act) sets forth the requirements for the admissibility of a confession made by any person in relation to the commission of an offence. Section 217(1)(a) provides that where a confession is made to a peace officer who is not a magistrate or a justice of the peace, such a confession must be confirmed or reduced to writing in the presence of a magistrate. Pursuant to section 217(1)(b), where a confession has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it is deemed to be admissible in evidence upon mere production (ss (b)(i)); and presumed, unless the contrary is proved, that the accused made the confession freely and voluntarily, while she or he was in her or his sound and sober senses, and without having been unduly influenced in making it (ss (b)(ii)).In S v Zuma (1995 (1) SACR 568 (CC)), the Constitutional Court found that section 217(1)(b)(ii) of the Act violated the right to a fair trial as embodied in section 25(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution). It is a longstanding principle of both English and South African law of evidence that the state bore the burden of proving that any confession on which it wished to rely was freely and voluntarily made. Section 217(1)(b)(ii) of the Act placed on the accused the burden of proving on a balance of probabilities that a confession made to or recorded by a magistrate was not free and voluntary. This section, therefore, created a legal burden of rebuttal on the accused – a so-called “reverse onus”.The court held that the common law rule requiring the state to prove that a confession was made freely and voluntarily, was integral and inherent in the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. These rights are the necessary reinforcement of the principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. Reversing the burden of proof seriously compromises and undermines these rights. The court thus declared that section 217(1)(b)(ii) of the Act violated the provisions of the Constitution of the Republic of South Africa, 200 of 1993 (the interim Constitution) and was invalid.In the authors’ view, with the Constitutional Court’s decision in Zuma, the principal rationale for sections 217(1)(a) and (b) of the Act seems to have fallen away. After all, the main reason to specifically provide for a confession made to or reduced to writing by a magistrate would be to ease the process of admissibility of such a confession without the need to test its admissibility at a trial-within-a-trial. After Zuma – whether a confession was made to or reduced to writing by a magistrate or not – if the accused contests the admissibility of the confession, the presiding magistrate must hold a trial-within-a-trial in which the state bears the onus of proving the admissibility of the confession on a balance of probabilities.This raises a possibility that did not exist prior to Zuma, namely that a magistrate to whom a confession was made or who reduced it to writing can be called as a witness by the state in a trial-within-a-trial. The authors question whether it is conducive to central tenets of the judicial function – independence and impartiality – for magistrates to take confessions at all, and thus be required to testify in any matter in which accused persons challenge confessions taken down by magistrates.