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n South African Journal of Criminal Justice - A statute of liberty? The right to bail and a case for legislative reform

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Abstract

Thousands of accused persons in South Africa spend lengthy periods of time in remand detention. The longer a remand detainee is kept in custody pending trial, the greater the infringement is on his or her right to liberty. Accordingly, the burden on the State to justify prolonged detention becomes greater with the passage of time and the reasons which initially justified remand detention will, at a certain point, no longer constitute sufficient justification for the continued remand detention. South African jurisprudence, compared to the European Court of Human Rights and other international adjudicatory bodies, has not developed to the point where courts interrogate the prosecution regarding the reasons for continued detention and actively inquire into the status of the investigation. Moreover, the legislative framework does not require that bail decisions be brought before courts repeatedly and at regular intervals. Automatic bail review and maximum custody limits are important legislative mechanisms that would not only promote the robust jurisprudential protection of the right to liberty, but remedy the current failure of the Criminal Procedure Act 51 of 1977 (CPA) to adequately protect a remand detainees' right not to be detained arbitrarily or without just cause.

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/content/ju_sajcj/25/1/EJC122672
2012-01-01
2016-12-03
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