A widely held misconception in South Africa is that the denial of bail is intended as a punishment. Continued imprisonment following on a decision to refuse bail is also not a penalty or sentence, and nor is the granting or denial of bail supposed to be a judgment on the extent of guilt of the accused.
These points are frequently misunderstood illustrated by statements such as: ”The accused got off on bail.” The bail amount or denial of bail is often seen as both a punishment and a reflection of presumed guilt, despite the constitutional imperative that an accused person is presumed innocent until proven guilty.
Speaking at the launch of the KwaZulu-Natal Institute of Local Government and Traditional Leadership fundraising summit, ANC president Jacob Zuma recently stated that the issue of bail for those accused of rape and murder ”needs to be looked at”.
He was responding to a question about bail for persons accused of murder or rape. Zuma declined to give his personal views, but said that ”sometimes we stretch human rights too far”. His reticence is understandable, given that he would have languished in pre-trial detention for the duration of his five-month rape trial had the law automatically denied bail for those accused of rape.
Zuma is correct when he implies that it is no easy task to balance the rights of accused persons with the public’s right to be safe from criminals. There are indeed some cases where dangerous persons are granted bail when they should not have been released.
But what Zuma needs to understand is that the problem does not lie with the bail law, but rather in its application — too few magistrates, too little investigation done prior to bail hearings, poor coordination between prosecutors and investigating officers, among others.
The law pertaining to bail has in fact been extensively revised to address some of these concerns. Since 1994, South Africa’s bail laws have been amended no less than five times, often to make it harder for persons accused of serious crime to be released on bail.
By international standards, South Africa’s bail laws are very strict. A 1997 amendment to the law consigns persons charged with a serious offence (murder, aggravated robbery and rape) to detention awaiting trial. This default position in favour of detention can be overcome only when the accused satisfies the court that ”exceptional circumstances” exist which in the ”interest of justice” permit his or her release.
An earlier amendment in 1995 obliged judicial officers to play an active role in bail proceedings: it asks them to seek pertinent evidence and to consider all potentially relevant information on a bail application. The courts were also permitted to take cognisance that the police require time to investigate a crime. Courts were consequently allowed to postpone bail applications for seven days at a time.
Most analysts agree that these changes increase the likelihood that those accused of serious offences will be detained awaiting trial. The amendments have essentially reversed the onus and the accused must show that the interests of justice do not require his or her further detention unless exceptional circumstances exist.
Recently commissioned research by the Open Society Foundation for South Africa (OSF-SA) corroborates this view. The findings reveal that the chance of a person accused of a serious offence being released on bail is significantly lower now than it was 10 years ago and that overall the chance that accused persons across all crime categories will be detained awaiting trial has increased dramatically during the last decade.
Our criminal justice system has many failings, but a lenient bail regime is not one of them. Rather than tinkering with the law, government needs to ensure that judicial officers have the means to make informed decisions about granting bail. Magistrates need to be provided, at the earliest opportunity, with all information relevant to the accused, including previous criminal records, ties to the community, and employment status. In this way they can ensure that accused persons who have been granted bail do not abscond, that poor defendants accused of petty offences are not held in custody for extended periods of time simply as a result of unaffordable bail and that offenders who pose a real risk to society are not released inappropriately.
Louise Ehlers is the programme director of the Criminal Justice Initiative at The Open Society Foundation for South Africa.