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.
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
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.
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
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.