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Posted to the web on: 21 April 2008
Why getting bail is harder than one might think
Jean Redpath

FEW people (ANC president Jacob Zuma included) seem to know that people arrested for criminal offences have fewer rights when it comes to bail than they did under apartheid.

That’s right, despite our “constitutionally guaranteed” procedural rights, bail is far less likely to happen speedily or at all under current legislation than it was even a mere 10 years ago.

The popular mantra that “criminals” have “too many rights” when it comes to bail is just plain wrong.

A cornerstone of the judicially interpreted right to bail under the old order included the right to an after-hours bail application.

In 1997, this right was removed by Parliament. This means that if you are arrested after 5pm, before 9am or on the weekend, you have no automatic right to arrange an immediate bail application and can be held in custody for “up to 48 hours”.

The definition of 48 hours is rather broad, so police can quite legitimately hold you for something like five days (if you are unlucky enough to be arrested on a Wednesday night) before bringing you to court, which they must do — they may not simply release you after the period has expired.

Once at court, your bail application can then be postponed for seven days at a time — if, say, the police say they need more time to investigate matters relevant to the bail application or the court says it needs more information before making a decision.

Previously there was a limit of one day for postponements of bail applications.

When a bail application is finally heard, you as the accused have to argue why your release “is in the interests of justice” — in the old days the state had to convince the court it was necessary to hold you in custody.

Parliament has legislated a wide range of factors (which in the past would have been strictly irrelevant) that a court must take into consideration when deciding whether bail is in the interests of justice, including possible “shock and outrage” of the community.

The legislation also stipulates situations in which release is not in the interests of justice, such as where the accused might interfere with witnesses.

You are now also compelled to reveal previous convictions during your bail application; if you don’t you can be convicted and sentenced to two years’ imprisonment.

If you are accused of the most serious aggravated offences, including murder and gang rape, you have to show “exceptional circumstances” exist before you can be released on bail, making bail highly unlikely.

If you are accused of serious crimes such as murder and rape, which are however not aggravated by other factors, you have to “adduce evidence” showing why your release is in the interests of justice.

Presumably Zuma himself adduced sufficient evidence in his 2006 rape matter to convince the court that bail of R20000 while awaiting trial was in the interests of justice.

In summary, it is difficult to imagine a less rights-friendly legislative environment around bail than the present one.

Underlying much of the public discontent about bail is the idea that denial of bail or the amount of bail set is a reflection of the extent of guilt of an accused.

But bail is not supposed to be a punishment. It is a mechanism, in the relatively rare scenario where an accused is released awaiting trial, to ensure that an accused returns to court, when extent of guilt and punishment will ultimately be decided at trial.

Whittling away at “bail rights” may be popular and easy to do in the current climate, but it is dishonest and dangerous, not least because it directs attention and resources away from the real problems in our criminal justice system — such as massive rates of withdrawal.

Indeed, three metropolitan courts recently studied (covering 27000 cases concluded in the course of last year) showed that there was a one in two chance of any given case ending in the charges being withdrawn — while 65% of accused remained in custody until the conclusion of their cases.

These high rates of withdrawal in turn feed into notions of denial of bail as punishment — because where a case is ultimately withdrawn, the bail decision will have been the last opportunity for the courts to make a decision in relation to the accused which “feels like” a punishment.

Time spent in custody awaiting trial is a far more likely outcome for most accused persons than is a guilty verdict — or any verdict at all.

Despite the absence of d raconian 90- and 180-day detention laws, it seems that “detention without trial” is still widespread. It is just effected by different mechanisms these days.

# Redpath participated in research for an Open Society Foundation-SA report on bail to be released on May 7 in Pretoria.