Research Articles (Law of Procedure and Law of Evidence)

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Browsing Research Articles (Law of Procedure and Law of Evidence) by Author "Bezuidenhout, Inez"

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    Die bekostigbaarheid van 'n aktiewe verdedigingsreg in die Suid-Afrikaanse strafregstelsel
    (Faculty of Law, University of the Free State, 2014) Bezuidenhout, Inez; Karels, Michelle
    English: Oscar Pistorius' bail application highlighted equality concerns within criminal justice. In essence, it demonstrated an imbalance of the right to equality before the law, and its associated right to equal protection and benefit of the law, within adjectival procedure and, more specifically, pre-trial release. Whether section 9(1) rights are equally applied to bail applicants of little or no notoriety is the concern of this research. This submission is a theoretical evaluation of an accused person's constitutional right to equality before the law in the South African criminal justice system and queries whether bail applicants, who do not have the infamy or financial resources of Pistorius, are reliant solely on the machinery of the state and therein the evidential capability of the prosecution service? The focus is on opposed applications where the burden of proof shifts to the applicant. Against this background, constitutional rights are approached in two lines of inquiry, namely: does the bail applicant enjoy equality of arms with the state where the applicant carries the onus of proof, and do economic differences between bail applicants influence constitutional equality rights? The authors conclude that economic differences have the potential to infringe constitutional guarantees in the bail process, and therein influence both equality of arms and active defence rights. The authors posit that legal aid should be extended to prevent rights infringement and that the inquisitorial nature of the South African bail process provides the ideal avenue to bridge equality concerns in criminal justice.
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    Legal educators – the peddler of precedent, the skill builder and the socially conscious knowledge generator
    (University of the Free State, 2014) Bezuidenhout, Inez; Karels, Michelle
    The time is rife to encourage law teachers to evaluate their individual subjective views of the law before embarking on another study of best-suited methodologies for modular teaching. This article does not aim to entertain the various methodologies of legal education in order to determine a best-fit or fit-for-purpose standard of legal teaching. It rather examines the epistemological importance of the law teacher’s intrinsic view of law, and its translation in legal education, thereby recognising the continuous transformation of exploratory educational discourse. The article purports that the personal views of law held by a law teacher are expressed in the way law is interpreted and articulated to students. In illustration of the above premise, we refer to three general types of law teacher. The first type honours the positive law, thereby preserving the recognition of contextualised doctrinal institutions of the law. The second, and most sought after in the contemporary context, prizes applied skill as a commodity necessary for practice. The third type augments teaching philosophy with social responsibility and therein the pursuit of good justice. We conclude that all three types have advantages and challenges. However, South Africa, as a plural society, requires law teachers who acknowledge that law has a social mandate and that the knowledge they instil must be fused with social consciousness in order for students to contribute to both society and the development of law as a professional discipline.