BAIL MANUAL FOR SOUTH AFRICAN PRCTITIONERS

(Revision in Progress)

[Unless otherwise stated, all statutory citations refer to the Criminal Procedure Act (51 of 1977)]

 

GROUNDS FOR REFUSING BAIL

1)     There are 5 grounds on which bail could be refused [s60(4)(a)-(e)];

2)     For the factors which  could be taken into account in for refusal, consult s60(5)-(8A).

 

In other words:

When bail is opposed in terms of —

s60(4)(a)— the factors laid down in s60(5) may be relied on.
s60(4)(b)— the factors laid down in s60(6) may be relied on
s60(4)(c)— the factors laid down in s60(7) may be relied on
s60(4)(d)— the factors laid down in s60(8) may be relied on
s60(4)(e)— the factors laid down in s60(8A) may be relied on

3)     There isn’t a fixed number (numerus clausus) of grounds for refusing bai; other grounds not specified may be considered.

 

S v Mbele and Another 1996 (1) SACR 212 (W) at 223g

On general principles, there can be no numerus clausus of the grounds which may be sufficient to justify the conclusion that it is in the interests of justice that an accused person should not be released on bail, and the Legislature should not be understood as having established an exhaustive list of grounds. In my judgment this submission was correct.

 4)               The grounds for refusal (s60(4)) are essentially a codification of the Common Law (so are the factors contained in s60(5)-(8A));

5)               Therefore cases dealing with the Common Law are still relevant;

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [39]

The practical superstructure was provided in s 60(4), as supplemented by sub-ss (5) to (8A), read with sub-ss (9) and (10).  Here the legislature, drawing on the case law as collated in S v Acheson, [1991 (2) SA 805 (NBmH)] tabulated the various criteria that ordinarily bear on the question whether or not bail should be granted in a particular case and, if it should, what conditions should be imposed.

 6)     All the endings of s60(5)-(8A) are as follows: “any other factor which in the opinion of the court should be taken into account.”;

7)     All these subsections are constructed in an “open-ended” manner;
8)     Therefore, regard could be had to other unspecified factors.

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC)par [44]

Because we are dealing with optional criteria, it is logical that each of sub-ss (5) to (8A), in spelling out the components of the criteria, appends at the end of its list of specific factors a deliberately vague hold-all provision permitting any other factor to be taken into account.  A court is thus told it may look beyond the listed factors and, even if it does find criteria (listed and/or unlisted) which could tilt the scales against bail, it must ultimately make its own evaluation.  A permissive interpretation of sub-s (4) is  therefore borne out by the very fact that the succeeding subsections are open-ended.

9)     Also note that, unlike all the other subsections, s60(4)(e) opens as follows: “where in exceptional circumstances . . . ”;

10) This means that s 60(4)(e) can be relied on only if the court is convinced that “exceptional circumstances” existed;
11) The s60(8A) factors are wide ranging and drastic;
12)  However, “exceptional circumstances” need only be proved on a “balance of probabilities”;
 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [57]

It is important to note that sub-s (4)(e) expressly postulates that it is to come into play only “in exceptional circumstances”.  This is a clear pointer that this unusual category of factors is to be taken into account only in those rare cases where it is really justified.  What is more, sub-s (4)(e) also expressly stipulates that a finding of such exceptional circumstances has to be established on a preponderance of probabilities (“likelihood”).

 13) The s60(5)-(8A) factors are good guidelines in determining grounds for bail refusing bail;

14) Evidence could be led with reference to these factors.

 

EVIDENTIARY AND PROCEDURAL CONSIDERATIONS

1)     Many of the factors require reliance on not only past, but also future probable conduct of the arrested;

 

S v Thornhill 1998 (1) SACR 177 (C) at 182e-f

The determination of the question whether the applicant for bail will abscond and forfeit bail essentially involves an enquiry into the probable future conduct of the applicant. This future conduct has to be determined on the basis of information relating, inter alia, to the applicant's past conduct. What has to be determined, therefore, is not a fact or a set of facts but merely a future prospect which is speculative in nature even though it is based on proven facts.  F  Ellish en Andere v Prokureur-generaal, WPA 1994 (2) SACR 579 (W).

2)     The question to be considered is whether there is a “likelihood” (a probability) that an arrested might or might not (in the future) e.g., abscond, intimidate witnesses, tamper with evidence, commit crimes, etc. if released on bail;

3)     To prove this, Prosecutors could adduce evidence not ordinarily all that easily admissible in criminal trials;
4)     In fact, bail proceedings are not criminal trials with ordinary rules of procedure and evidence;
5)     Evidence can generally be presented less formally, with  more liberal reliance on e.g., hearsay, documentary and character evidence;
6)     Although evidence can be tendered by affidavits, its probative / evidentiary value manner, its probative value is less than that of oral evidence;
7)     The reason is that, unlike evidence by affidavit, oral evidence can be subjected to cross examination.

 

S v Pienaar 1992 (1) SACR 178 (W) at 180h

In my view therefore there is nothing in the Criminal Procedure Act that renders the use of affidavits in bail applications impermissible.  Obviously an affidavit will have less probative value than oral evidence which is subject to the test of cross‑examination.  At the same time an affidavit will carry more weight than a mere statement from the Bar.

PERSONAL CIRCUMSTANCES OF THE ARRESTED¾ S60(9)

1)     The Defense could rely on s60(9) to prove that the interests of justice permit release;

2)     Evidence could be led on the likelihood of prejudice suffered upon the infringement of the right to personal freedom due to further detained;
3)     The court would have to consider these personal circumstances;
4)     The Prosecutor could in response lead evidence on e.g.,: the reasons for any delay, the nature of the investigation, how long the investigation would still last, measures taken, and will thenceforth be taken, to alleviate prejudice;
5)     But prejudice there will always be and this is not necessarily unreasonable and unjustifiable in an open and democratic society based on human dignity, equality and freedom (see s36 of the Bill of Rights, albeit applied in  a different context);
6)     One should therefore not shy away from the consequence that refusal to grant bail might entail infringement on the right to freedom;
7)     Arrested persons (or anyone for that matter) doesn’t have an “absolute right to freedom”.

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [79] 

It should of course never be forgotten that the Constitution does not create an unqualified right to  personal freedom and that it is inherent in the wording of s 35(1)(f) that the Bill of Rights contemplates - and sanctions - the temporary deprivation of liberty required to bring a person suspected of an offence before a court of law.  The hypothesis, indeed the very reason for the existence of s 35(1)(f), is that persons may legitimately and constitutionally be deprived of their liberty in given circumstances. This clearly establishes that unless the equilibrium is displaced, an arrestee is not to be released.

 8)     However, Prosecutors must nevertheless ensure that all investigations are finalised promptly and expeditiously;

9) Of the most potent arguments the defense could use is that the State is dragging its feet.

 

SECTION 60(11)

The procedure to be followed in a bail application would depend on the gravity of the offence. I’ll deal only with offences listed in schedule 5 and 6: offences governed by the provisions of s 60(11). In practice most bail applications revolve around these more serious offences.

Substantive Provisions of s 60(11)

 

1)  If the offence is listed in either schedule 5 or 6 the reverse onus provisions of s60|(11) apply;
2)  Therefore the arrested must satisfy the court that the interests of justice permit their release. 

See: S v Dlamini [par 61]; S v Mbele & Others at p. 220h-221a; S v Vermaas 1996 (1) SACR 528 (T) at .529 – 530; S v Shezi 1996 (1) SACR 715 (T) at p718a; S v Shezi 1996 (1) SACR 715 (T) at 718a-d; S v Tshabalala 1998 (2) SACR 259 (C) at 269g-h; S v Jonas & Others 1998 (2) SACR 677 (SE)  Horn AJ 

3)  Regarding schedule 6 offences, the arrested must furthermore prove that “exceptional circumstances” existed which in the interests of justice permitted release;

4)  As for schedule 5 offences, the “exceptional circumstances” requirement needn’t be proved;
5)  An arrested need only prove that the interests of justice permitted release;
6)  Note that the onus is on the arrested.

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) at par [60]

The difference between the two subsections, therefore, lies in the requirement that an accused on a sch 6 charge must adduce evidence to satisfy a court that “exceptional circumstances” exist which permit his or her release.  An arrested on a sch 5 charge, while obliged to adduce evidence, need only satisfy the court that “the interests of justice” permit his or her release. 

7)  This onus need be discharged on a balance of probabilities only.

 

See: S v Tshabalala 1998 (2) SACR 259 (C) at 269g-h; S v Vermaas 1996 (1) SACR 528 (T) at 539b-540b

This is in line with the common law: See, e.g., S v Hlongwa 1979 (4) SA 112 (D) at 113h; S v Mataboge and Others 1991 (1) SACR 539 (B) at 543f; Aitken and Another v Attorney‑General, Zimbabwe 1992 (2) SACR 296 (ZS) at 298 g-h

8)  Note, this onus can only be discharged by “adducing evidence”;T

9)  The defense can’t simply make informal statements from the bar;
10)       The arrested can also not address the court informally from the dock without having been sworn in.

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [61]

Under sub-s (11)(a)  the lawgiver makes it quite plain that a formal onus rests on a detainee to “satisfy the court”.  Furthermore, unlike other applicants for bail, such detainees cannot put relevant factors before the court informally, nor can they rely on information produced by the prosecution; they actually have to adduce evidence.

 

Formulating a Charge Sheet for the Purposes of s 60(11)

1)     Although there is an onus on the arrested, Prosecutors must first convince the court that the offence as set out in the charge sheet is governed by s60(11);

2)     Prosecutors can’t simply hand in a blank or incomplete charge sheet, thereby expecting to saddle the arrested with an onus;
3)     Under these circumstances the court might find that there is not an onus on the arrested, but on the state, the prosecution having failed to lay the basis for relying on s60(11);

Prokureur-generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O) (at 160c)

Hoe dit ookal sy, ek is van mening dat daar geensins gesê kan word of bevind kan  word dat die appellant ooit behoorlik aangekla was van huisbraak en diefstal van meer as R500 000 nie. Gevolglik het ek geoordeel dat daar geen bewyslas op die appellant gerus het om enigiets te bewys nie.

See also: S v Shezi 1996 (1) SACR 715 (T) at 718;  S v Stansfield 1997 (1) SACR 221 (C) at 229a-c

 4)     The particulars Prosecutors give of the charge must be such that the charge sheet prima facie discloses a schedule 5 or 6 offence;

5)     If Prosecutors alleged that the arrested committed e.g., a schedule 6 premeditated murder, this must at least be alleged;
6)     In cases governed by s 60(11) arrested persons face a difficult task to discharge the onus, especially regarding the s60(11)(a) (Schedule 6)  “exceptional circumstances” requirement;
7)     The Constitutional Court held that the fact that the arrested persons indeed faced this “uphill battle” meant that they should be given a fair chance to discharge the onus.

 

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) par [80]

They are indeed faced with an uphill battle, and they have to be given a fair chance, e.g. by ordering the prosecutor to furnish sufficient details of the charge(s) to enable the applicant to show why the circumstances are exceptional. Freedom is a precious right protected by the Constitution, that is why the subsection specifically requires that sch 6 arresters facing the more formidable hurdle of sub‑s (ll)(a) be afforded this opportunity.

 

8)     Prosecutors might have to give summaries of allegations (similar to a the High Court indictment);
9)     Prosecutors might even have to initiate the proceedings, presenting evidence before the arrested;
10) This however, wouldn’t mean that the state has an onus in respect of the proceedings on the whole;
11) Under these circumstances it could be said that Prosecutors would have the burden to initiate the proceedings (“'n beginslas”).

 

S v Shezi 1996 (1) SACR 715 (T) 718a-d

 Waar die Staat derhalwe staatmaak op die bepaling van art 60(11), soos gewysig, moet daar by wyse van 'n volledige klagstaat waarin die volle besonderhede van die misdryf uitgespel word, dit wil sê dit moet duidelik wees dat die beskuldigde aangekla word van 'n misdryf soos bedoel in art 60(11)(a), soos gewysig, anders moet daar feite voor die hof geplaas word óf by wyse van 'n erkenning óf deur middel van getuienis waaruit dit duidelik aangetoon word dat art 60(11), soos gewysig, van toepassing is op daardie betrokke beskuldigde.

 

12) The court must also direct Prosecutors to place evidence on record to clarify any uncertainty.

 

Legislative Assistance for Laying a Basis with regard to s60(11)

 

1) If Prosecutors foresee difficulties convincing the court that the offence is a schedule 5 or 6 offence, they could apply for a written confirmation from the DPP to this effect. [(s60(11A)(a))];
2) The DPP may at any time before plea, issue a notice to the effect that the DPP intends charging the arrested with such offence;
3) The DPP can issue this confirmation irrespective of what charge is specified on the charge sheet;
4) Should a dispute arise on the nature of the offense, the written confirmation shall, upon its mere production at such application or proceedings, be prima facie proof of the charge. [(s60(11A)(c)];
5) However, Prosecutors must hand the written confirmation in at the court as soon as possible after its issuing by the DPP [(60(11A)(b)];
6) This document will form part of the court record [s60(11A)(b)];
7) Prosecutors could also request a postponement for up to 7 days at a time to apply for such certificate [s 50(6)(d)(ii)].

 

Duty to Oppose Bail in respect of s 60(11) Offenses

 
1)     Prosecutors must oppose bail in schedule 5 or 6 matters;
2)     Should they decide not to oppose bail, the court must (shall) require them to place on record reasons for not doing so. [s60(2)(d)];
3)     The fact that the court must ask Prosecutors for reasons for not opposing bail (and record those reasons) means that Prosecutors could be brought to book upon failing to oppose bail.