Right to bail? Odds stacked against the accused person in South African bail law

Abstract

The Constitution of the Republic of South Africa, 1996 makes provision for the right to bail, which can only be granted when it is in the interests of justice. The Criminal Procedure Act (CPA) 85 of 1997 amended the Criminal Procedure Act 51 of 1977 in order to bring it in line with the Constitution by setting out the procedure to be followed in bail applications. In reality, however, the provisions of this statute have made it difficult for accused persons to be released on bail. This is particularly glaring in respect of Schedule 6 offences, where accused persons must adduce evidence to convince the court that there are exceptional circumstances that justify their release on bail. In this article, we outline the purpose and justification of bail, as well as the framework of s 60(11) of the CPA, with a focus on the notion of exceptional circumstances. We argue that, read with the requirement that the accused must adduce evidence in bail applications, the net effect of the current bail process is that accused persons are unjustifiably disadvantaged, and their right to bail, as set out in the Constitution, is hampered. We recommend that accused persons be entitled to the contents of the docket at the bail application stage.