oa Comparative and International Law Journal of Southern Africa - The procedural management of constitutional issues in criminal trials in a future South Africa: a cost-effectiveness study

Volume 26, Issue 3
  • ISSN : 0010-4051



This article is concerned with the practical implementation of a bill of rights in the South African criminal justice system. A bill of rights will have a pervasive impact on all aspects of the criminal trial, from the magistrate's courts to the provincial and appellate divisions of the Supreme Court. At present presiding judicial officers are not experienced in dealing with constitutional matters as such in criminal trials, mainly because there has to date been no need for them to consider the philosophy and practice underlying the application of a bill of rights. But soon all legal practitioners in the 'new South Africa' will ideally need to be able to find their way around comparative constitutional law, be able to read inter alia French or German, and have the necessary comparative primary and secondary legal sources at hand. Presiding judicial officers will have to examine the rules of evidence and procedure critically in the light of human rights law and be able to re-interpret statutes with the bill of rights in mind, abandoning the old 'intention of the legislature' as sole or main interpretative principle when interpreting statutes.

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