Bail system penalises the poor

Tsego Dube* sits quietly on an overcrowded bench at the Hillbrow magistrate’s court awaiting the fate of his bail hearing. It is a Monday morning and the court is bustling after a spate of weekend arrests.

Dube, accused of shoplifting, has no previous convictions and no outstanding warrants so he qualifies for bail, which is set at R1 000. His Legal Aid lawyer declares he cannot afford it as he is unemployed. Dube requests to be released "on warning". Instead, bail is fixed at R500 and his case is remanded for a week – giving his family some time to try to scrape together the money. If they can’t, he will become a remand detainee, spending time behind bars before his impending trial.

But the unpaid bail amount pales in comparison with the vast amount of money the department of correctional services – and ultimately taxpayers – will spend on housing, feeding and educating him and providing him with healthcare.

According to the minister, Sibusiso Ndebele, his department spends R9 876.35 per prisoner per month. Given the current prison population of 156 370 (both sentenced and remand detainees), the 243 correctional centres are costing the state and taxpayers R1.3-billion a month.

Ndebele revealed this figure at a recent press conference at which he discussed the financial merits of the newly introduced electronic monitoring programme.

Using GPS mapping technology similar to Google Earth, a central, 24-hour manned control room will track electronic tags tied around parolees’ ankles or wrists, much like a wristwatch. The tag is waterproof, shock resistant and triggers an alarm if an attempt is made to remove it.

The tracking system is personalised for each parolee, specifying where they may go and at what times. If these conditions are violated, an alert is sent from the device to the control room. Offenders may be called via the tags by the control room to query their whereabouts. A dead battery is considered violating parole conditions so, for those in rural areas, the tag is fitted with a solar energy device for recharging.

Highlighting the need to reduce costs, Ndebele said electronic monitoring costs R3 379 a month per offender: "This brings about a saving of almost R6 500 per offender every month."

The figure of R9 876.35 per prisoner per month, when broken down, equates to roughly R300 a day.

Ndebele defended the high figure, saying "the R9 000 includes food that meets health and nutritional standards. It includes reading material. Prisoners also need exercise."

But according to the department, the "assumed direct cost" per prisoner per day in the 2012-13 financial year was R13.86. This figure includes food, medicines and other items such as basic toiletries and bedding. Essentially, each prisoner costs the department about R390 a month directly, and it is only when warders’ salaries and other personnel costs are added that the figure jumps to R9 876.35.

Expenditure on correctional facilities irks taxpayers worldwide. In September, it was revealed that New York City’s yearly expenditure per inmate – $167 731 – is almost as expensive as four years of tuition at an Ivy League university. The United States department of corrections says 86% of its operating costs go to staff salaries.

The National Prisons Service in Mozambique spends an estimated 3 600 meticais (about R1 000) per prisoner per month. This cost covers accommodation, food, clothing and medical care. However, it is reported that, on average, prisoners receive only one meal a day, usually consisting of mealie meal and beans.

Although electronic tagging appears to be a more cost-effective solution and a step in the right direction, it is important to address the high number of offenders languishing behind bars in South African correctional centres. The bail system – or, rather, the poor administering of bail procedure – contributes directly to prison overcrowding.

Ndebele, in his 2013-14 budget vote speech, acknowledged that bail sums are set too high, which results in high prisoner population rates.

"On average, 15% to 20% of the 45 043 awaiting-trial detainees are in custody because they cannot afford bail. This has resulted in the poorest of the poor being removed from their families, with associated socioeconomic implications," he said.

The 2012-13 report of the Judicial Inspectorate for Correctional Services (JICS) makes reference to Ndebele’s comments, while clarifying that the issue alluded to by the minister is, in fact, "unaffordable bail amounts".

The report states: "At the cost of approximately R9 000 per month per inmate, the problem is grave and has a serious impact on other budget allocations, to the detriment of providing for socioeconomic needs."

The JICS also raises the issue of bail sums being above the financial means of the accused, thereby contributing to remand detention overcrowding.

Constitutionally, when someone is arrested for having allegedly committed a crime, he or she has the right to be released on bail provided certain requirements are fulfilled.

Legally, bail is awarded or denied on the strength of a two-stage inquiry. The first is to establish whether the accused qualifies for bail on the basis of whether they are a possible flight risk, whether they are a danger to society or whether they will tamper with the investigation. If it can be shown that the accused satisfies these criteria, then bail must be awarded.

The second stage is for the judge or magistrate to consider the amount of bail the accused can afford to pay. But if the accused cannot afford the bail sum proposed by the presiding officer, by law nonfinancial options should be considered.

However, this does not occur as often as it should. Nonfinancial bail options include handing in the accused’s passport to limit the chances of flight risk or agreeing to report regularly to the nearest police station – essentially, giving a nonfinancial guarantee that the accused will honour the court dates and not attempt to evade trial.

An expert, quoted in Wits Justice Project researcher Robyn Leslie’s 2012 report, Bail and Remand Detention: Entry Points into Evaluating Gauteng’s Court Stakeholders, sums up the crux of the issue: "Due to structural inequalities, bail becomes punitive to the poor. We have a system whereby an indigent shoplifter will be remanded for being unable to afford a small amount of bail money, whereas a businessman who stole millions can afford his huge bail and will not be remanded. So there is an inconsistency in the way bail is applied. Bail serves as a mistress to those with money."

Legal Aid South Africa has said that about 10 000 awaiting-trial detainees have the right to bail but cannot afford the amount set. In about half of these cases, bail was set at less than R1 000 – the category in which Dube’s case falls.

But ultimately it means that 10 000 people who legally qualify for bail will remain behind bars for the duration of their trial, contributing to remand overcrowding and each costing taxpayers a hefty R9 876.35 a month.

Kyla Herrmannsen is a member of the Wits Justice Project, which is based in the journalism department of the University of the ­Witwaters­rand

* Name changed to protect his identity

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