BAIL – A RIGHT IN TERMS OF THE CONSTITUTION AND NOT PUNISHMENT

When a suspect in a murder case is granted bail we hear people utter sentiments like “is a life only worth R8000 in South Africa“ or “he killed someone and he gets away with only paying R8000”.  When hearing such misperceptions about bail it is easy to understand that people feel that the justice system is failing them

The truth is when a person is arrested for allegedly committing an offence he or she is just a suspect. Anybody can be arrested, rightfully or wrongfully. The South African law recognizes this and deems a suspect to be innocent until proven guilty.

Section 35 of Constitution of the Republic of South Africa guarantees 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. 

It is important to remember that at this stage of the proceedings the arrested person is still deemed to be innocent and the purpose of a bail hearing is not to determine whether they are guilty or not but to see if they are a suitable candidate to be released from custody pending the finalization of the trial on the merits of the case, where their guilt will be determined. The purpose of any bail money and/or condition imposed by the court for the release of an arrested person is to secure their attendance at court for future court appearances and not as punishment.  

As a general rule the Constitution of the Republic of South Africa sets as a prerequisite for an arrested person’s release on bail that the interest of justice must permit it.

Section 60 of the Criminal Procedure Act sets out when it will not be in the interest of justice to be released from custody and lists the following grounds:

  • whether the arrested person is a danger to public or  any individual’s safety;
  • Likelihood of evasion of the trial by the arrested person;
  • Whether the arrested person is likely to interfere with witnesses or evidence;
  • Whether the arrested person’s release on bail will jeopardise to functioning of criminal justice system or bail system;
  • Whether there are any exceptional circumstances (presence or absence) which may lead to undermining of the public order or peace if the arrested person where to be released.

As said anyone may be arrested, not only the bad guys. We are always available to assist on our 24hour line 011 838 1214