Guest Column

Bail: right or privilege in a democratic SA?

2017-05-22 13:34

Michael Matlapeng

On May 8th Pieter Doorewaard and Philip Scutte, two farm workers from Coligny in rural Northwest accused of killing a teenager for picking a sunflower, were granted bail of R5000 each by the local Magistrate’s Court. This act sparked outrage from the local community which led to the looting and burning of houses and businesses in the town. 

The community could not understand how the court came to the conclusion that these alleged murderers could be released back into the unsuspecting public, after allegedly committing such a crime. There are many such examples whereby alleged perpetrators of crime, be it contact crime like rape, murder or assault are released on bail by the courts.

Whenever accused persons are hauled before court for their first appearance, members of the affected communities attend the proceedings to show their anger and frustration with messages of support for the victim(s), often with placards showing disgust directed at the accused, like: “no bail”, “sies man” and “ons is gatvol”. 

Unfortunately, these messages play no role in swaying the mind of the presiding officer, who is burdened with deciding whether or not to grant bail to the accused. 

The proverbial freedom and security of a person is a fundamental right which is protected and guaranteed by the law. Section 12 (1) of the Constitution provides: Everyone has the right to freedom and security of the person, which includes the right (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. In a perfect world, such a right would be absolute.

Section 35 (1) (f) of the Constitution is the one right an arrested or detained person looks forward to the most: To be released from detention, subject to meeting a few conditions and where the “interests of justice permit”. 
Depending on the charge that led to a person’s arrest, the constitutional right of a person to be released on bail can either be a run of the mill or frustrating task for both the legal representative and the accused, depending on the nature of the crime which the accused is charged with. 

The Criminal Procedure Act 51 of 1977 regulates the criminal justice system in South Africa. Chapter 9 of the Act states that everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. When determining whether or not an accused should be granted bail, societal interest may demand that persons suspected of having committed a crime remain behind bars, pending the finalisation of the trial, which can sometimes take years to complete.

The courts do not take a passive approach when determining whether an accused be released on bail. The courts rather exercise their discretion by balancing the interests of society, the accused and justice enshrined in the Constitution. The court is also not interested in whether or not the accused is guilty of the alleged offense. That determination is left to the trial court. What the interests of justice entail is a value judgment of what is fair and just in an open and democratic society for all concerned.

The leading case in the subject of bail is the matter of State v Dlamini and Others 1999 (4) SA 623. At paragraph [55] the court held the following: “There is widespread misunderstanding regarding the purpose and effect of bail.

Manifestly, much must still be done to instill in the community a proper understanding of the presumption of innocence and the qualified right to freedom pending trial under s 35(1)(f)”. At paragraph [56] the court also found that: ”The ugly fact remains, however, that public peace and security are at times endangered by the release of persons charged with offences that incite public outrage.”

Bail serves mainly three purposes: First, the liberty interest of the accused, second the public interest (by reducing the high number of awaiting trial prisoners clogging our already overcrowded correctional system) and lastly by reducing the number of families deprived of a breadwinner. 

The Criminal Procedure Act provides for the procedure for securing bail on behalf of an accused. An accused has the right to be presumed innocent, to remain silent, and not to testify during the proceedings according to section 35 (3) (h) of the Constitution which compliment section 35 (1) (f) above.

After arrest the criminal justice system must take its course. The next step is for the accused to be formally charged, a docket must be opened, fingerprints and sometimes DNA samples in the form of blood or swabs taken, and the residential address of the accused confirmed by the investigating officer, who will visit the accused’s place of residence to confirm the given address is correct.

It is always advisable to be open and honest at this early stage of any criminal investigation so that an accused is not later frustrated and eventually charged with a crime of lying under oath, which carries a prison sentence or a fine under exceptional circumstances. This was demonstrated by the case of the #FeesMustFall leader Mcebo Dlamini, when he was denied bail for among other things his untruthfulness regarding his academic timetable, which was demonstrated and proven to the court. 

The above-mentioned procedure is the genesis of any criminal investigation by the police. It does not matter whether the accused is charged with assault or murder, rape or a victimless crime such as corruption or fraud.

Interests of society, the accused and that of justice are protected by providing legally permissible conditions for the release of the accused on bail. These include the accused reporting to a local police station, the accused staying away from possible witnesses and victims and even handing his or her passport over to the police until the determination of his guilt is made by a competent court. 

These conditions, which are subject to the courts judicial discretion, are there to secure the accused’s release from the holding cells to ensure that the accused does not in any way hinder the investigation, that the accused does not commit any another offence, that members of the public are protected and lastly to ensure that the accused attends his next court appearance.

Bail is not a favour from the presiding officers. Nor is its denial a form of punishment either. Bail is a constitutionally guaranteed right in the Bill of Rights.

Our society is getting more and more violent by the day. Recent social media outrages like #MenAreTrash, #StopViolenceAganstWomen and #NotInMyName reflect a spike in gender-based violence. When alleged perpetrators of these violent crimes are eventually caught and frogmarched to answer for their heinous acts, communities will be up in arms, (rightly so) in demonstrating their anger and disgust to the accused.

The freedom and security of any person is of paramount importance, given its denial and ab(use) during the cruel, dark and violent days of apartheid. We all have a responsibility to allow the law to take its course, respect the rule of law and uproot the scourge of crime in our communities in a lawful manner. 

Furthermore, all have the responsibility to reject the temptation of taking the law into our own hands whenever any accused is released on bail. It may result in one being in the proverbial box, applying for bail themselves.

- Michael Matlapeng is an advocate of the High Court of South Africa and member of the Johannesburg Bar.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24. 

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