‘Free bail’ for the poorest

2009-07-08 00:00

A RECENT amendment to the Criminal Procedure Act (CPA) means that more people are likely to be released on “free bail” despite being charged with serious offences.

The new legislation demands that if a court has satisfied itself that the interests of justice permit the release of an accused person on bail, the court must hold a separate inquiry into the ability of the accused to pay a sum of money to secure his or her bail.

If, after an inquiry, the court finds that the accused is not in a position to pay any money for bail, it must consider setting appropriate conditions that do not include payment of any money for the release of the person.

Some legal sources have criticised the amendment, saying that in the case of accused people who face serious charges, the payment of large cash sums provides an incentive for that person not to abscond but to stand trial.

Even if the accused has not personally paid the bail they feel obligated to their family and friends who stood bail for them, and this is an added encouragement not to evade trial.

A Pietermaritzburg magistrate, Divesh Mootheram, this week released a 23-year-old man facing a charge of sexually violating a 12-year-old girl on warning or so-called “free bail”.

Despite being married with a young child, the accused is currently studying and has no income of his own, but is being assisted financially by his parents and others. The accused, who cannot be named at this stage because he has not yet pleaded to the charge against him, was represented by an advocate on private brief.

The court found he was not a flight risk and that he was entitled to be released on bail pending his trial.

Another amendment to the CPA has the effect of making it possible for bail to be paid at a different court to that where an accused is on trial. For example, bail money can be deposited with the clerk of the court in Cape Town to release a person who is awaiting trial in Johannesburg.

The electronic payment system at courts has been adjusted to make this possible.

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