The Right to Bail Under a Constitutional Democracy
Exploring the history of detention without trial, function and objectives of the right to bail under a constitutional democracy and dispelling the myths associated with the right to bail.
By Mkhokeli Pino
LLB NWU , African Political Economy Thabo Mbeki African Leadership Institute
“I think we all as South African’s including the media owe this nation an obligation to educate people about the role of bail; because these days people stand outside the courts with placards saying “No bail! No bail! No bail!” If the magistrate or judge in the proper exercise of their discretion release people with bail understanding what the purpose of bail is, the judiciary is condemned, why? This is exasperated by the views we express, those of us who have a measure of influence, because we believe and lead the people to believe that once a person is accused of having committed an offence; to demonstrate our seriousness they must start to serve their jail term and this is achieved by denying them bail….”. – Extracted from the media briefing by the Chief Justice Mogoeng Mogoeng following the release of the 2018 Judiciary Report.
During media briefing following the release of the 2018 Judiciary Report in November 2018, the Chief Justice was asked about some of the challenges that confront the public confidence in the Judiciary. It is widely accepted that public confidence in the judiciary is key to the maintenance of our constitutional democracy and the rule of law. Once the public lose confidence in the judiciary, the possibility exists that, the general public who are affected by crime may well take the law into their own hands and lawlessness will prevail. The extracted response of the Chief Justice is in my view informed by what transpires so often in our communities and society at large. It is therefore crucial that people know and understand the laws that govern their daily lives so as to promote and protect the rule of law and the peace and security it provides.
According to crime stats SA; the Northern Cape is the safest province in the country, with only 49,570 reported cases for 2018. Sexual offences and attempted murder are at an all-time low with only 1,476 cases, and 471 cases reported, respectively. One may well argue that these statistics are as a result of the fact that the Northern Cape has the smallest population of the nine provinces. Notwithstanding these statistics, the Northern Cape has witnessed some of the most heinous crimes and acts of sexual violence against woman and children. Reports and witnessing acts of criminality have often and understandably so, caused outrage within the affected community and with the evidence at their disposal or as a result of the emotions that are triggered, they hold the expectation that such people will be arrested and serve their jail term.
Unfortunately however, the operation of the law and the criminal justice system consistent with our Constitution, Section 35 provides such accused, arrested and detained persons certain rights and liberties including but not limited to the right to be released on bail. I submit that the right to bail, freedom and the presumption of innocence must be viewed inter alia with the understanding of the legacy of arrests and detention in South Africa.
In 1963, during the zenith of the apartheid era, then minister of justice, John Voster, caused Parliament to pass the General Law Amendment Act. The Act was directed at eliminating the growth of resistance against the apartheid regime. Under the Act, the security police also known as the “special branch” were given the authority to arrest anyone they suspected of being engaged or involved in any act against the state and to hold them in custody for 90 days at a time. The special branch used the 90 days to extract information, torture, humiliate and in many cases resulted in the untimely deaths of many anti-apartheid activists including Phakamile Mabija and Steve Biko who died while under police custody.
The 90 day Act was replaced with the 180 Day Detention Act (The Criminal Procedure Amendment Act Number 96 of 1965). The 180 day was also further replaced with the Terrorism Act Number 83 of 1967, which allowed the government to detain individuals indefinitely until all questions posed to them were answered to the satisfaction of the Security Police or no further purpose could be obtained by holding them in detention.
With this backdrop in mind, it is abundantly clear why it was necessary under a constitutional dispensation to pass laws that would protect the rights and dignity of all arrested and detained persons.
Section 12 of the South African Constitution provides for the right to freedom and security of persons:
“Everyone has the right to freedom and security of the person, which includes the right –
a) Not to be deprived of freedom arbitrarily or without just cause.
b) Not to be detained without trial.
c) Be free from all forms of violence from either public or private sources.
d) No to be tortured in any way; and
e) Not to be treated or punished in a cruel, inhumane or degrading way.
Some of the most pertinent rights contained under Section 35 include but are not limited to the following:
1. To be brought before a court as soon as possible, but not later than 48 hours after arrest; or The end of the first court da after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
2. At the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
3. To be released from detention if the interest of justice permit, subject to reasonable conditions
4. To choose, and to consult with, a legal practitioner, and to be informed of this right promptly.
5. To challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.
6. To have their trial begin and conclude without unreasonable delay.
7. To be presumed innocent, to remain silent, and not to testify during the proceedings.
Bail proceedings in South Africa are governed by Section 50 and 58-71 amongst others of the Criminal Procedure Act 51 of 1977 (as amended). In the main the purpose and function of bail, is to ensure that accused persons who are released on bail having paid a sum of money, will return to court on the next scheduled court appearance and or trail. For instance, if you are arrested today for an offence which you are alleged to have committed, the police working with the National Prosecuting Authority will require a reasonable amount of time to investigate the allegations levelled against you, collect witness statements, medical reports or any evidence that will assist them in determining if the state has a triable case. In some instances, this process can take months to conclude and the outcome thereof may result in the state declining to prosecute because of a lack of credible evidence or witnesses. It would therefore be an infringement of the accused persons rights to be detained in custody while such investigations are under way, only to be released months later especially considering the right to be presumed innocent until proven guilty.
The criminal justice system categorises the different allegations of criminal activity and depending on which offence a person has been charged with the requirements of bail may differ as well as who may release such accused person on bail. Some offences allow for the accused person to be released before their first appearance, others like a charge of statutory rape for instance, require a first appearance within 48 hours and may thereafter be postponed for up to seven days for a formal bail application in court. The accused charged with a schedule 6 offence like statutory rape, will be required to provide the court with exceptional circumstances that permit his release on bail.
The inquisitorial determination prior to granting of bail, takes into consideration a number of factors including: the interests of justice, the likelihood that the accused person will endanger the safety of the public, evade his or her trial, attempt to influence or intimidate witnesses or to conceal or destroy evidence. The Act further details how such considerations are arrived at and requires the presiding officer to establish the criminal record of such accused person and personal circumstances and the allegations levelled against the accused person.
In S v Dlamini, the constitutional court dealt with a number of cases dealing specifically with the constitutional validity of the provisions governing bail, Kriegler J had the following to say:
“The issue before the court hearing a bail application is not the accused’s guilt. It may be a factor which has to be probed, but not necessarily nor where it is with no holds barred”
It becomes clear that, the criminal justice system under a constitutional democracy, protects the rights of arrested and detained persons, in so doing weighs up those rights against the rights of the public at large. The fundamental right to be presumed to be innocent until proven guilty, means that, despite the uproar of the community and overwhelming evidence that the accused committed a particular offence, a court cannot based solely on the strength of the allegations, the gravity thereof or the severity of the violence involved deny a person bail. The trail courts function, will be to test the allegations and evidence against the accused person and afford him an opportunity to cross examine any such witness who may testify on behalf of the state.
It will be the responsibility of the state to prove its case in criminal matters beyond a reasonable doubt which will result in a guilty verdict and depending on the nature of the offence and sentencing may be that of direct imprisonment. This process often takes months if not years to conclude but it’s a necessary process in the proper administration of justice and a welcomed departure from the draconian 90 day detention Act that denied arrested, detailed and accused persons the rights enshrined under our constitutional democracy.