Research Articles (Law of Procedure and Law of Evidence)

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    Addressing domestic violence: to what extent does the law provide effective measures?
    (Faculty of Law, University of the Free State, 2004) Kruger, H. B.
    English: The high incidence of domestic violence in South Africa calls for a competent legal response. The Constitution as well as international human rights conventions oblige the state to protect human rights, including the rights of victims of domestic violence. The government is, therefore, challenged to enact effective legal measures to address domestic violence. This paper undertakes to examine the current legal remedies and protection available to victims of domestic violence. The focus is on the Domestic Violence Act 116 of 1998. The Act is discussed, compared to previous legislation and critically evaluated to assess its effectiveness in addressing domestic violence.
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    Are the rights of the disabled a reality in South Africa? Part One
    (Faculty of Law, University of the Free State, 2003-12) Reyneke, J. M.
    English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand, there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons leads to exclusion from functioning in a normal way in the community and the denial of the right to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
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    Are the rights of the disabled a reality in South Africa? Part two
    (Faculty of Law, University of the Free State, 2004-06) Reyneke, J. M.; Oosthuizen, H.
    English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons lead to the exclusion of them to function in a normal way in the community and the denial of their rights and to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
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    The demise of the Roman-Dutch 'kommer-recht: interpretation of statutes so as to conform to the spirit, purport and objects of the South African Bill of Rights
    (Faculty of Law, University of the Free State, 2009-06) Swanepoel, C. F.
    English: The Supreme Court of Appeal (in a judgment dated 23.11.07) in the case of Bid Industrial Holdings v Strang (2007) SCA 144 (RSA) (now cited as 2008(3) SA 355 (SCA)) held that the common-law requirement of arrest to found or confirm jurisdiction where an incola plaintiff wishes to sue a foreign peregrinus, which procedure is authorised in section 19(1) (c) of the Supreme Court Act 59/1959, is unconstitutional. In essence it was so held because such an arrest restricts a person's liberty and freedom (as entrenched in section 12 (1) of the Constitution) without a just cause. This article evaluates the judgment and highlights the importance of the full historical context and rationale for the existence of a common-law rule as yardstick against which to measure its constitutional justifiability. In this instance the rationale for the existence of the common-law rule of jurisdictional arrest was also, in essence, premised on the unequal treatment of foreigners vis à vis citizens, and predictably, this could not have passed the standard set by section 39(2) of the Constitution. The article investigates the method employed by the SCA in its interpretation of the alleged unconstitutional stipulations of the Supreme Court Act so as to bring it in line with the spirit,purport and objects of the South African Bill of Rights. Special attention is paid to the criticism of the judgment that it failed to comply with the peremptory stipulations of section 172 of the Constitution. The article concludes that such criticism is unwarranted.
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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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    Dignity: the missing building block in South African schools?
    (Faculty of Law, University of the Free State, 2010) Reyneke, J. M.
    English: There is a dire need in South Africa to build a strong education system to meet the needs and expectations of its people. Unfortunately, education is currently in an unacceptable state, with, inter alia, escalating school-based violence, deteriorating matriculation results and standards, high absenteeism rates among educators, strikes, and a lack of proper facilities and infrastructure. Lack of respect for the right to dignity of stakeholders will be investigated as an underlying contributing factor to this unfortunate situation. First, the concept of dignity will be discussed. Secondly, certain conduct, actions and decisions on the part of the different stakeholders will be considered with specific reference to the impact thereof on the different dimensions of the right to dignity of other stakeholders. It will be argued that all stakeholders in education infringe, to some extent, the right to dignity of others and that they should be sensitised to these infringements.
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    Dying to starve: a comparative analysis of legal aspects relating to consent in force-feeding of both minor and adult anorexic patients
    (Faculty of Law, University of the Free State, 2010-12) Karels, M. G.; Oosthuizen, H.
    English: The authors explore the legal complexities surrounding the force-feeding of anorexic patients. Due to the myriad of difficulties relating to anorexia nervosa, treatment is intricate. The aim of this exposition is to clarify legal issues of consent and self-determination, with regard to both adult and minor patients. In addition, the distinction between 'irrational' and 'incompetent' refusal will be discussed, with the authors maintaining that the 'irrational' refusal of an adult patient should be respected by the law. To come to an informed conclusion, the authors will first analyse the medical and psychological aspects of anorexia nervosa. Secondly, the South African position as shaped by the Mental Health Care Act, the Children's Act and the National Health Act will be contrasted with the position in Great Britain in order to determine the international perspective and its contrast, or not, to South African law.
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    Inkwisatoriese en akkusatoriese elemente in die Amerikaanse pleitonderhandelingsproses: rigtingwyser of waarskuwingsteken?
    (Faculty of Law, University of the Free State, 2002-06) Fick, C. v.d. M.; Snyman-Van Deventer, E.
    No abstract available
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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.
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    Sexual Offences Courts in South Africa: quo vadis?
    (Faculty of Law, University of the Free State, 2008-12) Kruger, H. B.; Reyneke, J. M.
    English: Since the establishment of the first Sexual Offences Court in Wynberg in 1993, various developments have taken place that include, but are not limited to, the following : several investigations into these courts were undertaken; the Sexual Offences and Community Affairs Unit (SOCA Unit) was established; a blueprint for Sexual Offences Courts was drafted and later refined; and, by 2007, the number of Sexual Offences Courts had increased to 59. These courts have performed exceptionally well compared with general regional courts and conviction rates rose to 70 per cent on average. Despite the obvious success of these courts, the Minister of Justice and Constitutional Development declared a moratorium on the establishment of additional Sexual Offences Courts pending the outcome of an evaluation of existing Sexual Offences Courts. In this article, a synopsis of the development of Sexual Offences Courts is given and the subsequent evaluation commissioned by the Minister is assessed and is supplemented with recommendations to enhance efforts to combat sexual offences through the Sexual Offences Courts.
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    Sexual Offences Courts: better justice for children?
    (Faculty of Law, University of the Free State, 2006-12) Reyneke, J. M.
    English: Child victims of sexual abuse are vulnerable witnesses who experience trauma and secondary victimisation when they testify in sexual abuse cases. Sexual Offences Courts aim to alleviate this problem in various ways. The main focus of this article is to examine the prescribed blueprint for Sexual Offences Courts in order to determine whether blueprint-compliant Sexual Offences Courts contribute to better justice for child victims of sexual offences. Each blueprint requirement is therefore analysed with the aim of determining whether possible advantages for child victims can be identified.The conclusion is reached that substantial advantages for child victims are provided by blueprint compliant Sexual Offences Courts. By 2005 54 Sexual Offences Courts were established countrywide and official statistics indicate that these courts are very successful. However, despite numerous commitments by government to establish more of these courts, a moratorium on the establishment of new courts was announced. It is argued that blueprint compliant Sexual Offences Courts do indeed provide better justice for children and therefore more of these courts should be established at a much faster rate.
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    South Africa's obligation as member state of the International Criminal Court: the Al-Bashir controversy
    (Faculty of Law, University of the Free State, 2015) Swanepoel, C. F.
    This article is a commentary on the judgement of the North Gauteng High Court on 24 June 2015 in the matter of The Southern Africa Litigation Centre v Minister of Justice and Constitutional Development, which dealt with the recent controversy surrounding the South African government's failure to arrest Mr Omar Hassan Ahmed al-Bashir, president of the Republic of Sudan, to be prosecuted by the International Criminal Court (ICC). This judgement will be analysed with particular reference to the ICC's Pre-Trial Chamber Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir's Arrest and Surrender to the Court, to which the North Gauteng court referred. The judgement of 24 June was preceded by an order of the court on 14 June, which declared the state's conduct constitutionally invalid, having failed to take steps to arrest and/or detain Mr Bashir. The state was ordered to take all reasonable steps to "prepare to arrest President Bashir without a warrant in terms of section 40 (1) (k) of the Criminal Procedure Act, 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court". The judgement under discussion is the court's reasons for this order.
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    Universal jurisdiction as procedural tool to institute prosecutions for international core crimes
    (Faculty of Law, University of the Free State, 2007-06) Swanepoel, C. F.
    English: The establishment of the International Criminal Court (ICC) with its intended purpose of ending the cycle of impunity that has notoriously attached to the perpetrators of gross human rights violations in the past hails a new chapter in international criminal law and justice. The structure of jurisdiction introduced by the ICC relies to a great extent on the co-operation of states to nationally prosecute perpetrators of gross violations of human rights. The ICC itself is intended to complement national jurisdiction and will only prosecute the most serious international crimes where the state that can exercise jurisdiction is either unwilling or unable to do so. This by necessity implies that states that are party to the ICC will be expected to establish and foster ways and means to enable themselves to investigate, prosecute, defend, adjudicate and to provide assistance to the ICC. One of the grounds upon which a state may exercise jurisdiction in terms of international criminal law is that of universal jurisdiction. This article explores aspects of the principle of universal jurisdiction and concludes that its application and development is of utmost importance in the quest of the international community to establish a credible international legal order.