Understanding a little about bail and the criminal justice system

There is an unfortunate tendency for South Africans who see bail being set at amounts lower than they would expect for the perceived seriousness of the crime to become outraged, merely because they associate bail with some form of punishment.

It has become more and more popular for those on social media platforms like Twitter and Facebook to see themselves as the jury (which doesn’t exist in the SA criminal justice system) in deciding that Magistrates and Judges, and sometimes police have erred in the bail amounts they have set. It is silly for people to get their knickers in a knot because they feel that they know better what bail amount should be set for alleged offenders, yet they fail to understand the basics of what bail is and what it is intended to achieve.

Section 35 of the Bill of Rights under the Constitution of the Republic of South Africa is clear insofar as holding that, amongst other things, every accused person has the right to be presumed innocent until they are proven guilty in Court.

The concept of extending bail to an accused person is not unique to South Africa and exists in most criminal justice systems in the world. Its purpose is to allow an accused person to be released from custody under constrained conditions so as not to imprison them unnecessarily, prior to them being convicted of the criminal offence they are alleged to have committed.

The Criminal Procedure Act allows any policeman above the rank of a non-commissioned officer (sergeant or above) to extend bail to an accused person, so it is not necessary for every accused person to appear before a judicial officer in order for bail to be granted.

There is however a significant problem with the way in which the bail system is administered in South Africa insofar as it is not subject to a centralised computerised system and for this reason, it is not uncommon to see alleged offenders being released on bail more than once and often, for new commissions of the same or similar crimes they were released on bail for in the first place.

When a person violates his or her bail conditions, amongst which are that he or she should not commit any further criminal offences, their bail should be revoked and they should be detained until such time as their trial has concluded. If they are arrested for allegedly committing another criminal offence, the detention period should be until both trials have concluded. In practice however, this is not what happens.

This is a serious problem and is one which our authorities must surely be acutely aware of, yet they have still not taken any steps to rectify the problem, which is in fact, relatively easy to address. All that is required is for a centralised computerised bail system to be implemented and this could easily be incorporated into the existing South African Police Service (SAPS) Criminal Administration System (CAS) as a further module thereof.

All it would take is the political will to do something about it and a little development time to effect it and this would cure the problem we currently have. The question therefore must be asked why it is that if we can see this, our Courts, Police and Department of Justice apparently can’t or won’t see it too.

But when it comes to the discussion around the bail amounts set by police and/or judicial officers for first time offenders, people tend to associate the bail amount extended with the seriousness of the crime in question and outrage is often expressed, purely because people associate bail with a penalty. Some also appear to be of the impression that people should be detained until their trial has concluded, regardless of how serious the crime is, or what risk the alleged offender does or does not present to the community at large.

This is definitely not the case and ordinary folk would be even more outraged to learn that provisions to release an arrested person on their own recognisance on a warning to appear before the Court, without any monetary guarantee being placed exist in the Criminal Procedure Act. When a monetary bail guarantee is set, many factors enter into the equation, not least of which is the ability of the accused to pay bail.

The purpose of bail is most definitely not to punish the alleged offender prior to them being convicted by the Court, but is merely there to act as a financial guarantee that they will appear before the Court on the day on which their matter is to commence. If they don’t appear, a warrant for their arrest will be issued for being in contempt of court and violating their bail conditions. Furthermore any monies they have deposited for bail would be forfeited to the State.

When they do appear in court and are acquitted, or the charges against them are withdrawn, their bail deposit is refunded to them in full. Similarly, when they appear in court and are convicted, monies they have paid in bail can be applied to any fine to which they are sentenced. If their trial is not concluded immediately, their bail is extended until their next court appearance.

It is also extremely unfortunate that senior people like Advocate Makhosini Msibi of the Road Traffic Management Corporation (RTMC) are either so misinformed about the provisions of the Constitution and the Criminal Procedure Act, or simply wish to ignore them that they too make reckless statements about how people will be arrested and detained without bail until such time as they appear in court. Their clear presumption that a person is guilty until they prove themselves innocent not only goes completely against the highest law of the land (the Constitution), but firmly establishes them as a authoritarians who have no place in a constitutional democracy.

The police, prosecutors and our Courts all have their roles to fulfil in our criminal justice system which, when each role-player in it does their job properly, actually functions exceptionally well. Problems arise however where one or other party does not do their job properly and therefore leaves a judicial officer with no choice but to acquit the accused person. This cannot be cured by resorting to kangaroo courts and/or law enforcement officers exacting punishment ahead of lawful conviction but can only be addressed by assuring that all concerned are professionals in what they do and fully understand what their role is in the criminal justice system.

While it may sound inconceivable that a person who has, for example, been arrested and charged with driving under the influence of alcohol could not have been guilty of the crime this can and often does happen due to insufficient training and understanding of the law and medical science.

Recently, the RTMC announced that a man had been arrested for being twenty-three times over the legal limit by producing a reading of 1,16g/100ml blood sampled. Not only would it not be medically possible for any human being to have that much alcohol in their system and still be alive (a blood alcohol level of 0,40g/100ml and higher would induce a stupor and respiratory failure) but it shows that traffic police often confuse breath alcohol levels with blood alcohol levels.

A breath alcohol level of 1,16mg/1000ml of breath sampled is just under five times the breath alcohol limit and so this person would still be convicted, however when a person who is arrested and charged for producing a reading of say 0,10mg/1000ml of breath sampled because the legal limit is below 0,05g/100ml of blood sampled they would definitely be acquitted since its breath equivalent is 0,24mg/1000ml.

The presumption therefore that a person must be guilty of the crime they were arrested for is not correct and people should refrain from jumping to such conclusions.

People should also refrain from associating arrest with punishment since they are actively encouraging the misapplication of our laws and Constitution in doing so. The purpose of arrest is and remains to bring an accused person before the Court to be fairly tried for the crime/s they are accused of committing. The police have no powers granted to them to punish offenders and this is the job of judicial officers and ultimately, the Department of Corrections if a term of imprisonment or correctional supervision forms part of that sentence.

It would be nice if everyone could come to realise how the criminal justice system is intended to work and would simply to their part to ensure that it does so.

Please consider joining JPSA if you are not already a member so we may continue to bring you information the authorities choose to withhold from you. Believe it or not, we too have expenses. You can join JPSA at https://www.jp-sa.org/join.asp.


The information and advice contained in this advisory is intended for information purposes and is published in the interests of assisting members of the public to understand the content material. It is not intended to be nor does it constitute legal advice. To our knowledge, all of the information in it is true and correct, however taking reliance in any of the information in it is entirely at your own risk.

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