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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Appeal by the prosecution and the right of the accused to be protected against double jeopardy: a comparative perspective
Author:Jordaan, LouiseISNI
Year:1999
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:32
Issue:1
Pages:1-27
Language:English
Geographic term:South Africa
Subject:criminal procedure
Abstract:The rule against double jeopardy seeks to prevent the reprosecution of someone who has already been prosecuted for the same matter ('res judicata'). This finality principle expounds that a matter, once put to an end, may not be reopened or relitigated. The common-law right of the accused to be protected against double jeopardy recently acquired constitutional status in South Africa. Section 35(3)(m) of the 1996 Constitution provides that 'every accused person has a right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted'. This article deals with the double-jeopardy implications of the State-initiated appeal. The focus is whether current South African legislation and common-law rules which provide for State-initiated appeals against acquittals on various grounds and State appeals against sentences imposed on convicted persons, can be reconciled with constitutional protection against double jeopardy. The relevant legislation appears to be carefully designed to infringe as little as possible on the accused's right to be protected against double jeopardy, while legislation which provides for an appeal against sentence may be viewed as a reasonable and justifiable infringement of the accused's fundamental right to be protected against double jeopardy. Notes, ref.
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