South African parliament seeks to change the law on bail. But will it help?
The Portfolio Committee on Correctional Services proposed an amendment to legislation on bail that will compel magistrates to consider whether an accused person can afford the bail amount set. To what extent can such an amendment reduce the remand detention population?
Tizina Ramagaga,
Junior Researcher, Crime and Justice Programme ISS Pretoria Office
Little provokes a public outcry
in South Africa like a story about a person who while out on bail is charged
with another crime. The media will report on these stories along with various
commentaries complaining about the how this reflects on the poor state of the
criminal justice system. While such incidents do occur occasionally a far bigger
problem, and one that does not receive the same amount of public attention, is
that of large numbers of people who are imprisoned simply because they are too
poor to pay the bail that has been granted to them.
In October last year, Legal Aid
South Africa highlighted to the National Assembly Portfolio Committee on
Correctional Services that at any given time, as many as 10 000 people were
sitting in prisons awaiting trial even though they had been granted bail. As
many as 9000 of these awaiting trail detainees had been granted bail below
R2500 with over 4 000 having been granted bail of less than R1000. This means
that as many as 10 000 people are currently sitting in prison simply because
they are poor while many wealthy people who may be charged with far more serious
crimes are allowed to stay in the comfort of their homes while they are
awaiting trial because they can afford bail.
In South Africa, the amount for
bail is the sole discretion of the magistrate and is based on information and
evidence presented before him/her. According to the Annual Report of the
National Prosecuting Authority, magistrates handled 99,7% of cases in the
current financial year 2010/11. Bail should be granted when the magistrate is
of the opinion that the accused person is not a flight risk and does not pose a
danger to the community. In this case the bail is simply an incentive for the
accused person to appear before the court at a certain date and is not
determined by the type of crime the person is alleged to have committed. By not
setting an affordable bail, the accused who may well be innocent, is being sent
to prison for what may be an extended period of time until their case can be
heard before a court of law.
Most awaiting trial prisoners,
who as our political leaders frequently remind us when one of their colleagues has
been criminally charged, are ‘innocent before proven guilty.” Moreover, most will
be released before their cases are finalised before a court of law for various
reasons that have little to do with whether they are guilty or not. It may be
because the investigation will fail to find evidence to substantiate a case
against them, witnesses will withdraw their allegations or will fail to attend
court. In the meantime they and their families will suffer various hardships,
which they would not experience if they could afford bail that was granted to
them. This situation also contributes to overcrowding in our correctional
facilities and burdens the state with unnecessary costs of incarcerating people
who do not need to be in prison.
The Committee is aware of this
state of affairs and is taking action to try and change the situation. On 20
September it tabled a report to parliament, calling for legislation to make it
mandatory for magistrates to consider an affordable bail amount for those
awaiting trial. The Committee wants to amend section 60 (2b) (ii) of the Criminal
Procedure Act (CPA) which states that the “court
must consider setting conditions for the release of the accused on bail and a
sum of money which is appropriate in the circumstances.”
According to Legal Aid South
Africa, magistrates should follow a
two-stage bail process in making decisions on bail. Firstly, magistrates should
determine whether a person is eligible to be released on bail and secondly, if
eligible, whether the amount is affordable for the person accused of the
crime. The Committee argues that the
second consideration is often ignored by magistrates and as such people
awaiting trail and were granted bail, remain in the custody of the Department
of Correctional Services (DCS).
However in responses to Parliamentary questions on
the same day that the Committee tabled its report, the Minister of Justice and
Constitutional Development (DoJ), Jeff Radebe noted that the executive was not
considering a review of the current legislation on bail, stating that, it had ‘considered
the current bail legislation and is of the view that the legislative framework
is not the challenge.’
The Minister argued that the real challenge was that
all required information is not always available for magistrates to make proper
or fair decisions on whether bail should be granted and the amounts that should
be set. Previous interventions by various role players support this view and have
pointed to existing legislation that
could assist magistrates in making decision on bail. For example, the CPA
allows magistrates to make an application for the release of an accused who
cannot afford bail on the recommendation by a Head of Prisons and approval of
the Director of Public prosecutions.
A notable piece of legislation is
section 66 (2a) (vii) of the Criminal Law (Sexual Offences and Related Matters)
Act of 2007, which requires that court consider pre-sentence reports in a trial.
However, a key challenge is that presentence reports are not always available
to magistrates. In 1997, the findings of a successful project, the ‘Pretrial
Service office’ initiated led by the DoJ, demonstrated that pre-trial service
reports would assist in reducing the awaiting trial population in prisons as they
would provide information on ‘the ability of an accused person to access money
needed to pay bail and encourage magistrates to use non-financial conditions of
release of bail.’ Moreover, a report by the United
Nations Asia and Far East Institute for the Prevention on Crime and the
Treatment of Offenders, noted that ‘if no
pre-trial services were available in South Africa, this would lead to a
doubling of the offenders held in prison awaiting trial. Unfortunately the
project was discontinued and remained only in the Eastern Cape’s Port
Elizabeth’s magistrates court.
On 6 September 2000, cabinet
approved the release of people who were granted bail of up to R1000 but were
awaiting trial in prison because they could not afford it. The release of the
accused came as a result of a recommendation from the Judicial Inspectorate of
Correctional Services (JICS) and in an effort to implement section 63A of the
CPA. By November 2000 the awaiting trial population decreased from 63 964 to 51
581. Subsequently however, the situation
did improve much further and as of February 2011 the awaiting trial population
stood at 49 695.
It would seem that legislation forcing magistrates to consider whether
an accused can afford bail may not be practical unless the relevant information
is made available. Various strategies to reduce the overcrowding of prisons have
had limited success. It may be time to reintroduce pre-trial screening services
at all courts, as the benefits would be many. Not only would it help magistrates
make better decisions about bail, but it could also assist the DCS to better
assess the needs and possible risks of those that are refused bail.
