Abstract
The purpose of bail must be evaluated in light of the purpose of pre-trial detention. Bail is not intended as a punitive measure. The Criminal Procedure Act 51 of 1977 contains various factors that guide a court in determining whether it is in the interests of justice to grant bail. Unfortunately, by giving undue weight to certain factors and ignoring others, courts have been known to deny bail on the basis that a lack of sufficient assets owned by accused persons means that they are likely to be flight risks. This is arguably unfair discrimination in terms of relevant Constitutional rights.
Highlights
My interest in this issue was sparked in 2013 while conducting research in the Johannesburg and Randburg magistrate’s courts.[2]
The purpose of bail must be evaluated in light of the purpose of pre-trial detention
The Criminal Procedure Act of 1977 contains various elements that guide a court in determining whether it is in the interests of justice to grant bail
Summary
The purpose of bail must be evaluated in light of the purpose of pre-trial detention. The denial of bail on the basis of a lack of a verifiable fixed residential address has affected the assessment of potential to abscond trial Both of these issues: ownership of assets and a fixed residential address, while distinct factors, stem from a similar indicator – that of the economic standing of the accused. Section 60(6) of the Criminal Procedure Act 1977 (Act 51 of 1977, or the CPA) attempts to balance this by considering the extent to which an accused can afford to forfeit the bail amount and the means and travel documents that would enable him or her to leave the country The latter two considerations will, in most cases, affect a wealthier accused rather than a poorer one. In this article I draw on these anecdotal observations, and review judgments from high courts (matters appealed from magistrate’s courts), to argue that bail inquiries are not always fairly assessed
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