What provision in the Constitution allows for bail?
Section 35(1)(f) states that anyone arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions.
What is the purpose of bail?
Bail is a form of security in ensuring that a suspect will stand trial and it is not a from of punishment. (S v Acheson (NMB))
Upon being granted bail, what is an accused required to do?
- To pay the sum which the police or court has determined;
- To comply with any conditions that may have been imposed, eg. Handing over of a passport;
- To appear in court upon a day given to him;
- To remain on release subject to bail and the outcome of the trial;
- If convicted, to apply for an extension of bail;
- To forfeit his bail, should he fail to appear in court or contravene any bail conditions;
- Upon acquittal or conviction, receive the bail money or security.
In reference to s35(1)(f), why do accused have the right to be released on bail?
- Every person has the right to be reeased on bail subject to reasonable conditions and taking into account the interests of justice. ( S v Dlamini)
- Bail is always to secure attendance of the accused at trial, and is never to serve punishment;
- Burden of proof is on accused to show on balance of probabilities, that is in the interests of justice that he be released on bail (s60(11));
- The presumption is in Cavour of granting bail unless to do so would prejudice the interests of justice. To obtain an overall assessment the court must take into account any previous convictions of the accused (S v Rudolph).
When will bail be refused?
Refusal of bail shall be in the interests of justice where one or more of the following grounds listed in s60(4)(a-e) of the CPA, which provide the following:
a) where there is a likelihood that the accused will endanger the safety of the public or will commit a schedule 1 offence;
b) where there is a likelihood that the accused will attempt to evade her trial;
c) where there is a likelihood that the accused will attempt to interfere with witnesses or evidence;
d) where there is a likelihood the accused will undermine the objectives or the proper functioning of the criminal justice system, incl. the bail system; and
e) in exceptional circumstances there is a likelihood that the release of the accused will disturb public order or undermine public peace or security.
What if the accused is a primary care giver of a child?
The court must consider the best interests of the child in terms of s28 of the constitution in addition to all other circumstances.
When can bail be granted by police?
Although bail is essentially a matter to be considered by the court, our law makes allowance for the police to grant bail to offenders in crimes which are not that serious in terms of s59 of CPA. Apart from the usual condition of appearing in a court at a given time and place, the police don’t have the authority to impose any further bail conditions. Where bail can be granted in terms of s59, but is refused, an accused may apply to a lower court at his first appearance.
When may bail be granted by the DPP or a prosecutor?
The DPP, or prosecutor authorised in writing by the DPP may, in consultation with the investigating officer and with respect to references referred to in schedule 7 may authorise the release of an accused on bail subject to the payment of a sum of money and any other reasonable bail conditions. (s59A(1) and 59A(3) of CPA. Prosecutorial bail is akin to bail granted by the court.
What does s50(6) of the CPA provide in regards to the court granting an accused bail?
- An accused is not allowed to bring an application for bail outside of normal court hours;
- A bail application of someone charged with a schedule 6 offence can only be considered by a magistrate of a district court, except where DPP or prosecutor deems it necessary to be considered by the regional court;
- Any lower court may postpone the bail application for a period of no more than 7 days at a time, on conditions the court deems appropriate.
Who has the burden of proof in bail applications?
Section 60(11) of CPA give rise to the issue of burden of proof being placed on the shoulders of the accused:
a) An accused who has been charge with a schedule 6 offence must adduce evidence which satisfies the court that exceptional circumstances exist in which the interests of justice permits his release;
b) An accused charged with a schedule 5 crime must adduce evidence that satisfies the court that the interests of justice permit his release.
What is meant by exceptional circumstances?
The requirement of exceptional circumstances should not be take to mean anything more than that the accused is required to show anything more than there are unusual, extraordinary, remarkable, peculiar or simply different (S v Peterson).
Eg. Terminal illness, a solid defence, if accused able to show that state’s case exceptionally weak.
Can an appeal be made against a bail decision?
An accused who hasn’t been granted bail can appeal to the High Court having jurisdiction, alternatively can also appeal a specific bail condition. Judge will only interfere with decision if he is of the belief that it is wrong. State can also appeal against the granting of bail.
What is the significance of previous convictions in bail proceedings?
The state not only has the right to prove and show that accused has previous convictions, but it is also obligatory for the accused and his legal representative to inform the court thereof (s60(11B)(a)(i)). An accused who refuses to do so renders him liable on conviction to fine or imprisonment not exceeding 2 years.
