Deciphering Dangerousness: A Critical Analysis of Section 286A and B of the Criminal Procedure Act 51 of 1977

Keywords: dangerous criminals, crime, discretion, preventative detention, indeterminate sentence, Canadian Criminal Code, Criminal Procedure Act, fair trial, constitutionality, psychiatric enquiry, community safety, under-utilised


The violent nature of some crimes and the high crime rate in South Africa reflect the fact that some offenders constitute a real threat to the security of communities. It is understandable, therefore, that the state seeks to protect its citizens through preventive measures. Although South Africa has certain legal provisions on its statutory books, it seems that the declaration of persons as dangerous criminals is under-utilised. South African legislation dealing with the declaration of dangerous criminals can be improved by borrowing some traits of the Canadian legislation. Such features include the restriction of courts' discretion and the provision of concrete and more detailed guidelines on the nature of the offences for which the provision can be applied. The courts could also take into account the type of criminal history of the offender which would merit the declaration of a dangerous criminal. It is also important that the extent of the violence in an offence should be thoroughly defined in court. Courts need to balance their wide discretion on the matter with the provisions in the Act in order to protect the community against dangerous criminals.



Author Biographies

Windell Nortje, Dr, University of the Western Cape

Dr Windell Nortje

Associate Lecturer

Foundation Programme

Faculty of Law

University of the Western Cape


Abraham Hamman, Dr, Senior Lecturer, University of the Western Cape

Senior Lecturer, Law Faculty, University of the Western Cape


Department Criminal Justice and Procedure

Chesne Albertus, Dr, Senior Lecturer

Senior Lecturer

Department Criminal Justice and Procedure, Law Faculty, University of the Western Cape



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List of Abbreviations
Colum Hum Rts L Rev Columbia Human Rights Law Review
Dalhousie J Legal Stud Dalhousie Journal of Legal Studies
FSR Federal Sentencing Reporter
IJOTCC International Journal of Offender Therapy and Comparative Criminology
NICRO National Institute for Crime Prevention and the Reintegration of Offenders
SCA Supreme Court of Appeal
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