Die bekostigbaarheid van ’n aktiewe verdedigingsreg in die Suid?Afrikaanse strafregstelsel

Abstract

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.