Bail A Practitioner's Guide

BAIL
A Practitioner's Guide
Third Edition
John van der Berg

BA LLB (Stell) LLM (Natal)
Advocate of the High Court of South Africa
Member of the Cape Bar
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Preface
In the decade since the second edition of this book was published, our law relating to bail continued to evolve, both in terms
of jurisprudence mostly seeking to develop and expand the common law, and continuing statutory attempts to improve the
bail-related statutes, inter alia by ameliorating the plight of those awaiting-trial prisoners who are simply unable to afford
even nominal bail. Alas, the bail law remains far from satisfactory, and instead of being simplified, seems to be becoming
ever more complicated.
In the light of the complexities produced by this area of our procedural law, it is disturbing to find that so few
practitioners and, with some exceptions, judicial officers appear to have taken the trouble to unravel some of its mysteries.
Increasingly, refusal of bail occurs in the lower courts—and is endorsed on appeal by the High Court—on the sole ground
that the state has succeeded in showing that it has a prima facie case against the accused, irrespective of the absence of
bail risk. This situation cannot but stultify the development of the law relating to bail.
On a professional level, this book therefore acknowledges the contribution of those judicial officers and lawyers who set
their minds to upholding the presumption of innocence and the right to liberty through a thorough understanding of the
bail law, and creative thinking in its implementation and practice.
Owing to the rapid rate at which the law faculties are releasing graduates into the great unknown of the courtroom, I
thought it prudent (and hopefully helpful) to introduce a little innovation into this, the third edition. First, I quote more
liberally from decided cases, as I have found that a great many young (and not so young) attorneys, advocates and
prosecutors lack free access to the law reports. Secondly, I have translated the quoted excerpts from some important
Afrikaans judgments into English so as to make them more widely accessible, retaining the original Afrikaans text in the
footnotes. Thirdly, I have added to the Appendix section a number of 'Quickfinder', step-by-step guides to the various bail
proceedings that a practitioner may encounter in a day's work, with references to the applicable paragraphs of this book, as
well as case law.
The Criminal Procedure Act 51 of 1977, and in particular its Chapter 9, continues to be the principal source of our bail law.
Unfortunately it has not quite kept pace editorially with systemic changes, and consequently I have decided, in the interests
of consistency and uniformity, to retain the Act's references to 'the attorney-general', rather than resorting to 'the DPP'
where it has appeared as a result of scattered amendments to sections of the Act.
Acknowledgements and thanks are due to the Juta's team, and in particular my publisher, Anita Kleinsmidt, who has
shown not only enormous patience in
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guiding me through the electronic editing process, but also boundless enthusiasm and vigilance in detecting and passing on
possibly useful material.
The law is stated as at 31 May 2012.
John van der Berg
June 2012
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Table of Contents
Preface
Chapter 1: Introduction, history and sources
1.1 Introduction
1.2 Early history and sources
1.3 South Africa: statute and common law
Chapter 2: The nature and purpose of bail
2.1 Contractual nature of bail and 'bail bargaining'
2.2 Policy considerations
2.3 Non-penal character of bail
2.4 Release on bail no substitute for a speedy trial
2.5 Bail hearing and adjudication a matter of urgency
2.6 The purpose of bail 16
Chapter 3: The presumption of innocence
3.1 The content of the presumption
3.2 The importance of the presumption in a constitutional democracy
3.3 The presumption and pre-trial liberty
3.4 Application of the presumption to the bail process
Chapter 4: The right to bail
4.1 The right to liberty
4.2 The right to bail in some other jurisdictions
4.3 Theoretical basis of the right to bail in South Africa
4.4 Bail and the due process and crime control models
4.5 The pre-Constitution era
4.6 The interim Constitution
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4.7 Section 60(1)(a) and the Bill of Rights

4.8 Cash bail and the poor: a hollow right?
Chapter 5: Bail granted extra-curially
5.1 Limitation as to offences
5.2 Official having jurisdiction
5.3 Procedure and formalities
5.4 Discretion
5.5 Police bail: no discretionary conditions
5.6 Legal representation
5.7 Duration of extra-curial bail
Chapter 6: The bail hearing
6.1 Initiating the bail hearing
6.2 Court having jurisdiction
6.2.1 Transfer of accused for trial or sentencing
6.2.2 Schedule 6 applications
6.2.3 Court to which accused is referred in terms of s 59A
6.3 Jurisdictional facts
6.4 The words 'at any stage' in s 60(1)(a)
6.5 Request by accused to be brought before court
6.6 No limitation as to offences
6.7 Release absolutely conditional
6.8 Additional discretionary conditions
6.9 Duration of bail granted by court
Chapter 7: Procedure and onus
7.2 Raising the question of bail: s 60(1)(c)
7.3 Informal procurement of information: s 60(2)(b)
7.4 Access to information and presentation of evidence: s 60(14) and s 60(2)(c)
7.5 Postponement of hearing for lack of information: ss 60(2)(a) and 50(6)(d)
7.6 Court requiring further information or evidence: s 60(3)
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7.7 Procedure in renewed applications

7.8 The provisions of s 60(9) and s 60(10)
7.9 The analytical models and the incidence of the onus
7.10 The interim Constitution and the onus
7.11 The onus in s 60(1)(a) and the Bill of Rights
7.12 Constitutionality of s 60(11)(a) and s 60(11)(b)
7.13 The onus in s 60(11)(b) read with Schedule 5
7.14 Incidence of the onus in terms of s 60(11)(b)
7.15 Procedure in Schedule 5 applications
7.16 The onus in s 60(11)(a) read with Schedule 6
7.16.1 Defining 'exceptional circumstances' generally
7.16.2 'Ordinary circumstances' as 'exceptional circumstances'
7.16.3 Likelihood of acquittal as 'exceptional circumstance'
7.16.4 Preparation of defence as 'exceptional circumstance'
7.16.5 Some misconceptions regarding proof of 'exceptional circumstances'
7.17 Incidence of the onus in terms of s 60(11)(a)
7.19 Peregrini and the onus
7.20 The rules of evidence in bail hearings
7.22 Record of proceedings
Chapter 8: The rules of evidence in bail hearings
8.1 Introduction
8.2 The right to present evidence
8.3 Hearsay evidence
8.4 Basis for the admission of hearsay evidence
8.5 Opinion evidence
8.6 Basis for the admission of opinion evidence
8.7 Similar fact evidence
8.8 Basis for the admission of similar fact evidence
8.9 Character evidence
8.10 Basis for the admission of character evidence
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8.11 Admissions and confessions

8.12 The privilege against self-incrimination
8.13 Admissibility of bail record at subsequent trial
8.14 The rules of trial
Chapter 9: The issues in bail hearings
9.1 Introduction
9.2 Risk of endangering public safety or committing further offences: the established approach
9.3 Risk of endangering public safety or committing further offences: s 60(4)(a) and s 60(5)
9.4 Risk of abscondment: the established approach
9.5 Risk of abscondment: s 60(4)(b) and s 60(6)
9.6 Risk of interference with state witnesses: the established approach
9.7 Risk of interference with state witnesses: s 60(4)(c) and s 60(7)
9.8 Risk of jeopardising the criminal justice system: the established approach
9.9 Risk of jeopardising the criminal justice system: s 60(4)(d) and s 60(8)
9.10 Risk of disturbing the public order etc: s 60(4)(e) and s 60(8A)
9.11 Factors personal to the accused
9.12 The words 'interests of justice' in s 60 and s 35(1)(f) of the Bill of Rights
9.13 The relevance of minor children of prisoners
9.14 The relevance of bail to referrals for observation ito s 78(2)
9.15 The relevance of a charge referred to in Schedule 1, 5 or 6
9.16 The relevance of the attorney-general's attitude
Chapter 10: Bail conditions
10.1 Introduction
10.2 Absolute condition that accused posts bail or security
10.3 The amount of bail: excessive bail not permitted
10.4 Increase or reduction of amount of bail
10.5 Court having jurisdiction to increase or reduce amount of bail
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10.6 Securing accused's attendance at application for increase of amount of bail

10.7 Application for increase or reduction of amount of bail: procedure
10.8 Onus of proof in application for increase or reduction of amount of bail
10.9 Condition that accused stands trial
10.10 General condition that accused serves sentence
10.11 Specific conditions: general introduction
10.12 The words 'bail has been granted' in s 62
10.13 The words 'on application by the prosecutor' in s 62
10.14 Specific condition that accused should report—s 62(a)
10.15 Specific condition that accused may not visit any place—s 62(b)
10.16 Specific condition prohibiting communication with state witnesses—s 62(c)
10.17 Specific condition regarding domicilium citandi—s 62(d)
10.18 Residual specific conditions—s 62(e)
10.19 Specific condition of 'house arrest'—s 62(f)
10.20 Conditions must be clear
10.21 Conditions must be intra vires
10.22 Conditions must be capable of implementation and control
10.23 Conditions must be necessary and reasonable
10.24 Conditions must not be contra bonos mores
10.25 Amendment or supplementation of bail conditions
10.26 Breach of conditions a punishable offence
Chapter 11: Posting bail or security
11.1 Payment of cash bail
11.2 Payment by the accused
11.3 Payment by third party
11.4 Receivers of the bail money
11.5 Refund of cash bail
11.6 Guarantees in lieu of money
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11.7 Sureties
11.8 Adequacy of sureties
11.9 Release of sureties
11.10 Indemnification of sureties and depositors
Chapter 12: Cancellation of bail
12.1 Introduction
12.2 Failure of accused to appear: general
12.3 Failure to appear: interpretation of s 67
12.4 Failure to appear: court having jurisdiction
12.5 Failure to appear: procedure and onus
12.6 Failure to observe conditions: general
12.7 Failure to observe conditions: application by prosecutor
12.8 Failure to observe conditions: presence of accused
12.9 Failure to observe conditions: court having jurisdiction
12.10 Failure to observe conditions: procedure and onus
12.11 Failure to observe conditions: fault
12.12 Failure to observe conditions: court's discretion
12.13 Accused about to abscond: general
12.14 Accused about to abscond and time not of the essence
12.15 Accused about to abscond and time of the essence
12.16 Accused interfering with state witnesses etc
12.17 Accused about to abscond, or interfering with state witnesses etc: procedure and onus
12.18 Cancellation at request of accused
12.19 Effect of cancellation
12.20 Appeal and review of cancellation of bail
12.21 Refund of bail money
Chapter 13: Alternatives to bail
13.1 Introduction
13.2 Release on summons
13.3 Release on warning
13.4 Failure to appear on warning or comply with conditions
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13.5 Release on warning distinguished from bail

13.6 Committal to a place of safety
13.7 Supervised release
Chapter 14: Release pending appeal, review and petition
14.1 Release pending appeal absolutely conditional
14.2 Release pending review absolutely conditional
14.3 Release on warning pending appeal or review not competent
14.4 Bail pending appeal or review: principles
14.5 Bail pending appeal or review: significance of prospects of success
14.6 Bail pending appeal or review: onus of proof regarding prospects of success
14.7 Lapse of bail granted pending appeal or review
14.8 Bail pending petition: introduction
14.9 Petitioning the Supreme Court of Appeal
14.10 Petitioning the Judge President
14.11 Petitioning the Constitutional Court
14.12 Petitioning the Minister
14.13 Bail pending appeal or review of decisions of military tribunals
Chapter 15: Appeal and review of bail proceedings
15.1 Bail appeals: principles
15.2 Appeal against extra-curial refusal of bail
15.3 Appeal against refusal of bail by lower court
15.4 Leave to appeal lower court's decision
15.5 Appeal against refusal of bail by superior court: introduction
15.6 Superior court as court of first instance
15.7 Superior court as court of second instance
15.8 Court having appellate jurisdiction
15.9 Appeal by the state against grant of bail by lower court
15.10 Appeal by the state only with leave
15.11 Appeal by the state: costs
15.12 Appeal by the state against grant of bail by superior court
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15.13 Appeal against bail conditions

15.14 Appeal against supplementation of conditions
15.15 Appeal against amendment of conditions
15.16 Appeal against refusal or conditions of bail pending appeal or review
15.17 Appeal against cancellation of bail
15.18 Appeal against forfeiture of bail money
15.19 New facts arising: appeal conditional
15.20 Bail appeals: procedure
15.21 Review of bail proceedings
15.22 Review of supplementation of bail conditions
15.23 Review of amendment of bail conditions
15.24 Review of cancellation of bail
15.25 Review of forfeiture of bail money
15.26 Review of bail proceedings: procedure
15.27 Appeal against grant or refusal of release on warning
15.28 Appeal against conditions attached to release on warning
15.29 Appeal against cancellation of release on warning
15.30 Review of proceedings in respect of release on warning
15.31 Appeal against placement in place of safety
15.32 Review of placement in place of safety
Chapter 16: Extraordinary provisions, powers and proceedings
16.1 Introduction
16.2 Arrest and detention of witnesses: s 184(1), (2) and (4)
16.3 Detention of witnesses: s 185
16.4 Detention in terms of anti-terrorism legislation: recent history
16.5 Detention in terms of anti-terrorism legislation: current law
16.6 Extraordinary position of the attorney-general
16.7 Private prosecutions
16.8 The interdictum de homine libero exhibendo (habeas corpus)
16.9 Bail procedures prompted by prison conditions: general
16.10 Bail procedures prompted by prison conditions: s 60(2B)
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16.11 Bail procedures prompted by prison conditions: s 63A

16.12 Bail applications neither curial nor extra-curial: s 159A
Chapter 17: Bail and the rights of children
17.1 Rights of the child generally
17.2 Children: constitutional right to bail
17.3 Role of the police
17.4 Role of the prosecutor
17.5 Role of the court granting bail
17.6 Role of the court refusing bail
Chapter 18: Bail and military tribunals
18.1 Military detention in statutory context
18.2 Pre-trial release
18.3 Release during trial
18.4 Release pending appeal or review
Chapter 19: Bail in extradition proceedings
19.1 Introduction
19.2 Bail pending extradition enquiry
19.3 Appeal against refusal of bail
19.4 Bail after committal: some other jurisdictions
19.5 Bail pending appeal against extradition order
Appendices
Appendix A Criminal Procedure Act 51 of 1977, ss 50, 58–72A, 159A, 304–316
Appendix B Criminal Procedure Act 51 of 1977, Schedule 1
Appendix C Criminal Procedure Act 51 of 1977, Schedule 2 Part III
Appendix D Criminal Procedure Act 51 of 1977, Schedule 5
Appendix E Criminal Procedure Act 51 of 1977, Schedule 6
Appendix F Criminal Procedure Act 51 of 1977, Schedule 7
Appendix G Extradition Act 67 of 1962, ss 9–13
Appendix H Quickfinder: Bail application ito s 60(1)
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Appendix I Quickfinder: Bail application ito s 60(11)(a)

Appendix J Quickfinder: Bail application ito s 60(11)(b)
Appendix K Quickfinder: Notice of appeal ito s 65
Appendix L Quickfinder: Notice of appeal ito s 65
Appendix M Quickfinder: Bail pending petition and appeal to High Court
Appendix N Quickfinder: Bail pending petition and appeal to SCA
Bibliography
Table of Cases
Index
Page 1
1
Introduction, history and sources
1.1 Introduction
The criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his
subsequent trial. Congested criminal court rolls and completion of police investigations are the main factors that contribute
to this state of affairs. And, indeed, an accused person also has a right not to have an immediate trial: he should be given a
reasonable opportunity to prepare his defence and consider his position. [1]
Pre-trial incarceration presents a special problem. The accused is being deprived of his liberty in circumstances where no
court of law has pronounced him guilty and the presumption of innocence operates in his favour. [2] But at the same time
there is a possible risk—and in many instances a very real risk—that an accused person who is released pending trial might
abscond. Ideally, considering the disadvantages of pre-trial incarceration to both accused and state, as well as universal
problems of overcrowding and concomitant constitutionally unacceptable conditions in our prisons, far greater use should
be made of summons procedure in minor cases and cases where the accused's address is known to the police. Also, more
persons should be released on their own recognisance (an aspect which is considered more fully in the chaper focusing on
alternatives to bail as a form of pre-trial release). The procedural device known as 'bail' attempts to strike a balance between
these competing criminal justice interests. Bail is an attempt to ensure the accused's presence at his trial, while at the same
time giving due regard to the principles and policy considerations that underlie the criminal justice system. [3] Bail is based
on the premise that the requirement of a financial deterrent to flight will adequately protect the viability of the system while
ensuring that the accused can enjoy liberty before his trial. But it should be pointed out that release on bail is not the only
form of pre-trial release. [4]
The nature and purpose of bail and the advantages of pre-trial liberty are dealt with more fully below. [5]
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The ideal situation is that pre-trial liberty should be the norm and that pre-trial release should be refused only in those
instances where the accused will not stand his trial or would otherwise interfere with the administration of justice. [6]
But the realities and practicalities of the criminal justice process are such that this ideal is hardly attainable. One can at
most argue that the rules and principles which govern bail and its related procedures should reflect a calculated effort to
give true meaning and effect to the ideal mentioned above. And, above all, it should be borne in mind that bail is non-penal
in character. It is improper to permit pre-trial detention to be used as an informal punishment in advance of (or instead of)
a formal determination of guilt and sentence. This is discussed further below. [7]
1.2 Early history and sources

The bail process is of English origin, and may be traced back to the English kings Hlothaere ( ad 673-685) and Eadric ( ad
685-687). [8] Accused persons were required to pay a sum of money (called 'borh') [9] to the alleged victim of the crime to
temporarily satisfy the accuser and to prevent feuds between the families of the parties. [10] The money was refunded if the
accused were found innocent. The 'borh' concept was modified prior to the Norman Conquest in 1066 because of lengthy
delays between the accused's arrest and his trial. A system was introduced whereby the accused was allowed to pay a sum
of money to the sheriff to avoid pre-trial incarceration. [11] Again, this money was returned upon the accused's acquittal. [12]
In medieval England the emphasis of the bail process shifted to cater for the security that the accused would attend his
trial. [13] Thus, accused persons were released into the custody of friends or relatives who vouched for their attendance at
court and who undertook to surrender themselves in the event of the accused's abscondment. [14] This system relieved the
sheriffs of the burden of detaining the accused at the pre-trial stage. [15]
The American colonists adopted many aspects of the English bail system. [16] From as early as 1645 the American
colonies adopted the practice of making provision for bail, [17] primarily to avoid the injustice and expense of pre-trial
Page 3
incarceration. This practice was continued after the Revolution. [18] The courts viewed the system with approval, for it
provided them with constructive rather than actual custody over the accused. [19]
In contrast to developments in England, bail was practically unknown to early Roman-Dutch law, and became an accepted
practice only in later times. [20] It is perhaps surprising that the concept of bail did not suggest itself to early Roman-Dutch
lawyers or, for that matter, to the Romans, for the idea of blood-money (pacisci de talione redimenda) to exclude the
application of talio or retaliation in kind was already established in the Twelve Tables. This Roman practice was but a short
step removed from the practice of 'borh', which manifested itself in seventh century Anglo-Saxon laws.
1.3 South Africa: statute and common law

The first unambiguous provisions made in South Africa for the pre-trial release of an accused person are to be found in
Ordinance 40 of 1828 (Cape). These initial bail provisions were subsequently adopted in Natal and the two Boer Republics
before the introduction of Ordinance 1 of 1903 (Transvaal), which ultimately served as the model for the first post-Union
criminal code, Act 31 of 1917. The successor to this, our earliest national criminal code, was the Criminal Procedure Act 56
of 1955, which was itself repealed in 1977, but continues to play a limited role in our law of criminal procedure.
In South Africa the issue of bail is regulated by the provisions of Chapter 9 of the Criminal Procedure Act 51 of 1977 ('the
Act') and the Bill of Rights. [21] This does not imply, however, that the common-law principles pertaining to bail have fallen
by the wayside. On the contrary, in the several instances where the Act is either silent or ambiguous, our high courts have
fulfilled their function by resorting to their common-law powers. That they were entitled to do so, however, has not always
appeared as obvious to our courts as might have been expected. In the leading Constitutional Court judgment on the topic
of bail, S v Dlamini; S v Dladla; S v Joubert; S v Schietekat (hereinafter referred to for the sake of convenience as
Dlamini), [22] Kriegler J expressed the following lament:
In South Africa, judicial pronouncements on the topic [of bail] have been called 'labyrinthine'. There is murkiness even at the
elemental level of the source(s) of South African judicial pow er to grant bail, ie w hether the pow er derives exclusively from—and is
circumscribed by—chap 9 of the Criminal Procedure Act . . . or w hether there is a parallel reservoir of 'inherent' or 'common-law ' pow er
on w hich a Judge can draw . [23]
The Constitutional Court nevertheless referred with approval [24] to the judgment
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in S v Hlongwane, [25] in which the inherent common-law powers of the High Court to grant bail were thoroughly examined
and dealt with. [26]
In a passage which is crucial for the understanding of the High Court's inherent powers to grant bail, the court in S v
Hlongwane held as follows: [27]
Page 5
1. The [High Court] has the common-law power to use the interdictum de homine libero exhibendo in order to inquire
into the lawfulness or unlawfulness of the detention of any person, and, where the deprivation of liberty is not proved
to be lawful, to order his release. That general power cannot be completely left out of the reckoning in the current
discussion. It may be (but it is unnecessary to go into the question at this time) that such wide common-law power
also includes the narrower power to order conditional release on bail in appropriate circumstances. (It is also
unnecessary at this time to go into the various statutory limitations on such common-law power.)
2. That the High Court does possess a general common-law power to release a prisoner on bail has been accepted or
assumed in various decisions: Ex parte Reckling 1920 CPD 567; R v Blumenthal 1924 TPD 358; R v Innes 1925 CPD
58; Ex parte Graham: In re United States of America v Graham 1987 (1) SA 368 (T) at 372D–373I.
3. When a person has been lawfully arrested on a charge and for purposes of criminal proceedings, his right to be
released on bail is governed by chapter 9 (ss 58–71) of the Criminal Procedure Act 51 of 1977. Chapter 9 contains
codification of such rights from arrest to the passing of sentence. An accused therefore cannot, during such time,
claim recourse to any common-law powers of the court for his release on bail except, possibly, if peculiar
circumstances arise where such common-law powers can be exercised within the framework of chapter 9 without
clashing with it. Compare Beehari v Attorney-General, Natal 1956 (2) SA 598 (N) at 603B; S v Kaplan 1967 (1) SA
634 (T); Chunilall v Attorney-General, Natal 1979 (1) SA 236 (D); S v Baleka and Others 1986 (1) SA 361 (T) at
374I–376D.
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4. After passing of sentence in the High Court the Court possesses a common-law power to control its sentence. The
Court can therefore suspend the sentence pending the finalisation of any further steps that may be taken in a Court
(including application for leave to appeal, petition to the [President of the SCA], appeal, special entry, reservation of a
question of law), and temporarily liberate the sentenced person. The Court can also impose a condition, for example
that the sentenced person should furnish bail in order to attain his release. The Court therefore has a common-law
power to release on bail after passing sentence: R v Ngedlane and Roux 1935 NPD 638 at 647; R v Wessels 1935 AD
8; R v Lee 1949 (1) SA 1134 (A) at 1149; R v Milne and Erleigh (7) 1951 (1) SA 791 (A) at 881H.
5. Part of the terrain covered by said common-law power is also covered by s 321(1)(b) and (2) of Act 51 of 1977.
Presumably it will have to be accepted that where s 321(1)(b) applies, it would replace the common-law power. The
common-law power continues to apply to instances not affected by such statutory provision.
6. A Provincial Division's power to release on bail, pending further Court proceedings, someone who has been convicted
by the High Court and sentenced to undergo imprisonment, does not expire once the Court has granted leave to
appeal to the [SCA]. Notwithstanding the fact that the matter is then transferred to the [SCA], the Provincial Division
retains its power to release the appellant on bail until the appeal is heard: R v Mthembu 1961 (3) SA 468 (D); R v
Milne and Erleigh (7) 1951 (1) SA 791 (A) at 882B.
7. After passing of sentence in a lower court, the High Court of the area in question possesses the common-law power
to control the lower court's sentence. In the exercise of such power the High Court can suspend a sentence of
imprisonment imposed by the lower court pending the finalisation of further court proceedings (review or appeal). The
Court can also impose a condition, for example that the sentenced person should post bail. The High Court thus
possesses a common-law power to release on bail an accused sentenced in a lower court, pending further proceedings
in a higher Court: Head v Wollaston and the Attorney-General 1927 TPD 19. When the Court is approached to
exercise such common-law power, the statutory powers of the lower court as referred to in para 9 below will have to
be borne in mind. There may be little room remaining for the exercise of the common-law power by the High Court
before the hearing of the appeal or review.
8. Part of the terrain covered by said common-law power is also governed by s 304(2)(c)(vi) (release on bail by a court of
review) and by s 309(3) read with s 304(2)(c)(vi) (release on bail by a Provincial Division of the High Court as Court of
appeal). Where such statutory power applies, its provisions replace the common-law power, although the latter power
will continue to apply to instances that are not governed by the statutory provisions.
9. After passing of sentence by a lower court, such court itself possesses a statutory power to release the accused on
bail pending finalisation of a review (s 307) or an appeal (s 309(4)(b) read with s 307).
10. After finalisation of an appeal to the [SCA] and since the abolition of the Privy Council, no Court is possessed of the
power, whether at common law or by statute, to release a sentenced prisoner on bail, either pending a petition to the
President for clemency (compare Beehari v Attorney-General (above)) or pending a petition to the President in terms
of s 327 of Act 51 of 1977 for the hearing of evidence which only became available after the trial, or after exhaustion
or lapse of all other procedures (compare Chunilall v
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Attorney-General (above); Hoosain v Attorney-General, Cape (2) 1988 (4) SA 142 (C)). [28] (My translation.)
Mönnig v Council of Review [29] was a review by a Full Bench of the Cape High Court. Three young men doing their national
service in the Castle at Cape Town had been convicted of contravening s 18(2) of the Riotous Assemblies Act 17 of 1956,
read with s 4(1)(b) of the Protection of Information Act 84 of 1982, and sentenced to undergo 18 months imprisonment in
the military detention barracks, by an ordinary court martial convened in terms of s 104(5)(b) of the Defence Act 44 of 1957
read with ss 59(1)(b) and 71 of the Military Disciplinary Code ('the MDC'). The prisoners sought bail pending the
confirmation of their convictions and sentences by the 'convening authority' and an application for review before the military
Council of Review (presided over by a High Court Judge) in Pretoria. As the MDC made no specific provision for bail, King JP
granted bail in chambers, exercising his common-law jurisdiction. [30]
Similarly, in Tsotsi [31] the Eastern Cape High Court held that no statutory empowerment vested in the court the power to
grant bail to the applicant, who was in the process of bringing an application to review the findings of a military court.
However, interestingly and significantly, Plasket J held that there was also no ouster of the court's jurisdiction. [32] In the
course of his judgment, the learned Judge highlighted two principles relating to the High Court's common-law power to
grant bail, namely that, as such power derived from inherent jurisdiction, it had to be exercised consistently with the nature
and purpose of inherent jurisdiction, which was (in terms of the common law), and is (in terms of s 173 of the
Constitution), to enable superior courts to protect and regulate their own process, and to develop the common law; and
that the power to grant bail in the absence of statutory empowerment is a manifestation of the power of superior courts to
regulate their own orders in the interests of justice. [33] The learned judge went on to hold that despite the fact that military
courts are not part of the ordinary court structure, superior courts exercise a supervisory jurisdiction over them that is
'similar in all material respects to the supervisory jurisdiction that they exercise over magistrates' courts' and that there
was no bar to the High Court granting bail
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in the exercise of its common-law jurisdiction to control the orders of lower courts within its area of jurisdiction. [34]
(Emphasis added.)
The exercise of such common-law powers is discretionary. [35]
[1] Dow Discretionary Justice (1981) 59.
[2] The presumption of innocence is dealt with in C h 3.
[3] See para 2.6.
[4] See C h 14.
[5] In C h 2.
[6] See para 4.6.
[7] In paras 2.3 and 5.3.
[8] Dow 59.
[9] C f the Afrikaans word for bail, viz 'borg'.
[10] Dow 59.
[11] Pollock 1898 LQR 291; Dow 59.
[12] Dow 59.
[13] Hampton Criminal Procedure (1982) 91.
[14] Freed & Wald 1964 Yale LJ 966. See also Kerper Introduction to the Criminal Justice System (1979) 269.
[15] Nagel Rights of the Accused (1972) 177.
[16] Dow 60.
[17] Scott & Simpson Cases and Other Materials on Judicial Remedies (1947) 34.
[18] Duker 1977 Alb LR 77.
[19] Dow 60. See also Leahy & Pound 1972 Duq LR 17.
[20] Nathan Common Law of South Africa vol iv (1907) para 2704.
[21] Section 35(1)(f) of the C onstitution.
[22] 1999 (4) SA 623 (C C ).
[23] In para [3] of the judgment.
[24] In para [3] n 12 of the judgment.
[25] 1989 (4) SA 79 (T).
[26] For recognition of an inherent power to grant bail, see also Ex parte Reckling 1920 C PD 567; R v Blumenthal 1924 TPD 358; Ex parte Graham:
In re United States of America v Graham 1987 (1) SA 368 (T); Veenendal v Minister of Justice 1993 (2) SA 137 (T); S v Thornhill (2) 1998 (1) SAC R
177 (C ).
[27] At 95D-97E. The original text reads:
`(1) Die Hooggeregshof het die gemeenregtelike bevoegdheid om die interdictum de homine libero exhibendo te gebruik om oor die wettigheid of
onwettigheid van die aanhouding van enige persoon navraag te doen, en, waar die vryheidsberowing nie bewys word wettig te wees nie, sy
vrylating te gelas. Daardie algemene bevoegdheid kan nie in die onderhawige bespreking heeltemal buite rekening gelaat word nie. Dit mag wees
(maar dit is tans onnodig om daarop in te gaan) dat daardie wye gemeenregtelike bevoegdheid ook die nouer bevoegdheid om in gepaste
omstandighede voorwaardelike vrylating op borgtog te gelas, inhou. (Dit is ook onnodig om tans op verskeie wetteregtelike inperkings op
sodanige algemene gemeenregtelike bevoegdheid in te gaan.)
(2) Dat die Hooggeregshof wel oor 'n algemene gemeenregtelike bevoegdheid tot vrylating van 'n gevangene op borgtog beskik is in verskeie
beslissings aanvaar of veronderstel: Ex parte Reckling 1920 C PD 567; R v Blumenthal 1924 TPD 358; R v Innes 1925 C PD 58; Ex parte Graham:
In re United States of America v Graham 1987 (1) SA 368 (T) op 372D-373I.
(3) Wanneer 'n persoon wettiglik op 'n aanklag en vir doeleindes van strafverrigtinge in hegtenis geneem word, word sy reg op vrylating op borgtog
tot en met vonnisoplegging in die verhoorhof deur hoofstuk 9 (arts 58-71) van die Strafproseswet 51 van 1977 bepaal. Hoofstuk 9 bevat
kodifikasie van sodanige regte vanaf inhegtenisname tot vonnisoplegging. 'n Beskuldigde kan hom dus nie gedurende die bedoelde tydperk op
enige gemeenregtelike bevoegdheid van die hof tot vrylating op borgtog beroep nie, behalwe, moontlik, indien besondere omstandighede opduik
waar so 'n gemeenregtelike bevoegdheid binne die raamwerk van hoofstuk 9, en sonder om daarmee te bots, uitgeoefen kan word. Vergelyk
Beehari v Attorney-General, Natal 1956 (2) SA 598 (N) op 603B; S v Kaplan 1967 (1) SA 634 (T); Chunilall v Attorney-General, Natal 1979 (1) SA
236 (D); S v Baleka and Others 1986 (1) SA 361 (T) op 374I-376D.
(4) Na vonnisoplegging in 'n strafverhoor in die Hooggeregshof, beskik die Hof oor 'n gemeenregtelike bevoegdheid om sy vonnis te beheer. Die Hof
kan gevolglik 'n vonnis van gevangenisstraf hangende die afhandeling van enige verdere stappe wat in 'n Hof gedoen kan word (insluitende
aansoek om verlof tot appèl, versoekskrif na die Hoofregter, appèl, spesiale inskrywing, voorbehoud van 'n regsvraag) opskort, en die
gevonnisde persoon tydelik vrystel. Die Hof kan ook 'n voorwaarde oplê, soos byvoorbeeld dat die gevonnisde persoon borgtog moet verskaf om
sy vrylating te bekom. Die Hof het dus, na vonnisoplegging, 'n gemeenregtelike bevoegdheid tot vrylating op borgtog: R v Ngedlane and Roux
1935 NPD 638 op 647; R v Wessels 1935 AD 8; R v Lee 1949 (1) SA 1134 (A) op 1149; R v Milne and Erleigh (7) 1951 (1) SA 791 (A) op 881H.
(5) 'n Gedeelte van die veld wat deur die laasgenoemde gemeenregtelike bevoegdheid gedek word, word ook deur art 321(1)(b) en (2) van Wet 51
van 1977 gedek. Dit sal seker aanvaar moet word dat waar art 321(1)(b) en (2) van toepassing is, dit die gemeenregtelike bevoegdheid vervang.
Die gemeenregtelike bevoegheid geld nog vir gevalle wat nie deur sodanige statutêre voorskrif geraak word nie.
(6) 'n Provinsiale Afdeling se bevoegdheid om iemand wat in die Hooggeregshof skuldig bevind is en tot gevangenisstraf gevonnis is, hangende
verdere Hofverrigtinge op borgtog vry te laat, verval nie nadat die Hof verlof om na die Appèlafdeling te appelleer toegestaan het nie.
Nieteenstaande die feit dat die aangeleentheid daarna na die Appèlafdeling oorgeplaas word, behou die Provinsiale Afdeling die bevoegdheid tot
aanhoor van die appèl om die appellant op borgtog vry te laat: R v Mthembu 1961 (3) SA 468 (D); R v Milne and Erleigh (7) 1951 (1) SA 791 (A)
op 882B.
(7) Na vonnisoplegging in 'n laer hof, beskik die Hooggeregshof van die betrokke gebied oor 'n gemeenregtelike bevoegdheid om die laer hof se
vonnis te beheer. In die uitoefening van sodanige bevoegdheid kan die Hooggeregshof 'n vonnis van gevangenisskap wat deur die laer hof opgelê
is, hangende die afhandeling van verdere hofverrigtinge (hersiening of appèl) opskort. Die Hof kan ook 'n voorwaarde oplê, byvoorbeeld dat die
gevonnisde persoon borgtog verskaf. Die Hooggeregshof het dus na vonnisoplegging in 'n laer hof 'n gemeenregtelike bevoegdheid tot vrylating
op borgtog hangende verdere verrigtinge in 'n hoër Hof: Head v Wollaston and the Attorney-General 1927 TPD 19. Waar die Hof genader word om
sodanige gemeenregtelike bevoegdheid uit te oefen, sal die wetteregtelike bevoegheid van die laer hof soos in para 9 hieronder na verwys in
gedagte gehou moet word. Daar mag weinig ruimte oorbly vir die uitoefening van die gemeenregtelike bevoegdheid deur die Hooggeregshof voor
aanhoor van die hersiening of appèl.
(8) 'n Gedeelte van die veld wat deur die laasgenoemde gemeenregtelike bevoegdheid gedek word, word ook deur art 304(2)(c)(vi) (vrylating op
borgtog deur 'n hersienende Hof) en deur art 309(3) gelees met art 304(2)(c)(vi) (vrylating op borgtog deur 'n Provinsiale Afdeling van die
Hooggeregshof as Hof van appèl) gereël. Waar sodanige wetteregtelike bevoegdheid geld, vervang die bepalings daarvan die gemeenregtelike
bevoegdheid, maar laasgenoemde bevoegdheid geld nog vir gevalle wat nie deur die wetteregtelike voorskrifte gereël word nie.
(9) Na vonnisoplegging in 'n laer hof beskik die laer hof self oor 'n wetteregtelike bevoegdheid tot vrylating op borgtog hangende die afhandeling van
'n hersiening (art 307) of 'n appèl (art 309(4)(b) gelees met art 307).
(10) Na afhandeling van 'n appèl deur die Appèlafdeling, en sedert die afskaffing van appèlle na die Geheime Raad, beskik geen Hof oor enige
bevoegdheid, gemeenregtelik of statutêr, om 'n gevonnisde prisonier op borgtog vry te laat nie, nÒg hangende 'n versoekskrif aan die
Staatspresident vir begenadiging (vergelyk Beehari v Attorney-General, Natal 1956 (2) SA 598 (N)), nÒg hangende 'n versoekskrif aan die
Staatspresident ingevolge art 327 van Wet 51 van 1977 vir die aanhoor van getuienis wat eers na die verhoor, of na afhandeling of verval van
alle ander prosedures, beskikbaar geword het (vergelyk Chunilall v Attorney-General, Natal 1979 (1) SA 236 (D); Hoosain v Attorney-General,
Cape (2) 1988 (4) SA 142 (K)).'
[28] The position has changed somewhat as regards further appeals after finalisation of an appeal before the SC A, as appeals are possible from the
SC A to the C onstitutional C ourt—see C h 15.
[29] 1989 (4) SA 866 (C ).
[30] The bail aspect is unreported, but the author has first-hand knowledge, as he represented the second applicant during the military trial, before
the C ouncil of Review, in the C ape High C ourt, and in the SC A (as to which, see Council of Review, SADF v Mönnig 1992 (3) SA 482 (A)).
[31] 2004 (2) SAC R 273 (E).
[32] At 278h.
[33] At 281e-h.
[34] At 281i-282d.
[35] At 282d-e.
Page 9
2
The nature and purpose of bail
2.1 Contractual nature of bail and 'bail bargaining'

The granting of bail is in the nature of a contract [1] in terms of which the state commits itself to the accused's continued
interim freedom once the court [2] has authorised his release, while the accused commits himself to standing trial. [3] It is
apparent that the contracting parties are the state and the accused, [4] although the discretion to grant bail vests in the
court. [5] For this reason the court is inevitably drawn into the contractual sphere and plays a decisive role in making it
possible for the contracting parties to perform their obligations. [6] Indeed, the court's discretion extends to the
determination of the sum of money payable as bail by the accused to the state, as well as the conditions of the contract,
and thus it becomes involved in the full contractual process.Under the former Criminal Code [7] the accused entered into a
written 'recognizance' or pledge with the court to comply wth the conditions of bail, and pledge was signed as a formal
contract by both the accused and the magistrate. [8]
It is submitted below that the state and the accused should attempt to reach consensus before the issue concerning bail
is raised in court. The contractual nature of bail, however, does not imply that the accused and the state can confront the
court with an amount or bail conditions which must be accepted by the court. The discretion to grant bail and determine the
amount and conditions vests in the court. [9] The court is not bound by any suggestions and may itself supplement the
terms of the proposed contract by reducing or increasing the amount of bail and by adding or omitting such terms as it may
consider expedient. If bail is truly a contract between the state and the accused (as it is submitted to be, for the interests
sought to be protected are claimed by
Page 10
the state and the accused) then it might seem to be somewhat anomalous and even undesirable that a court should have
the power to interfere in respect of a proposed agreement where the state and the (represented) accused have reached
consensus. It should, however, at all times be borne in mind that the power to grant or refuse bail is essentially a judicial
one. Thus, while perhaps it may have been justified on the particular facts of the case, the decision of the Constitutional
Court in Carmichele v Minister of Safety and Security comes dangerously close, it is submitted, to investing the prosecution
not only with a burden to disclose all relevant information to the court, but also with responsibility for the ultimate decision
whether or not bail should be granted. [10] The mere fact that the parties concerned have reached consensus cannot oust
this fundamental principle. After all, it is the ultimate responsibility of the court to see to it that the interests of justice are
not prejudiced. But it is also submitted that if the accused's legal representative and the state have reached consensus, a
court should be slow to interfere with the terms of the agreement for the simple reason that the 'contracting parties' are at
this stage far better informed than the court as regards the pre-trial issue of release on bail. Obviously, different
considerations apply in respect of an agreement reached between the state and an undefended accused: in such cases the
court should be expecially careful not to give judicial force and effect to a bail agreement which places excessive burdens on
an accused. [11]
In exercising its discretion, the court must seek to strike a balance between protecting the liberty of the individual and
safeguarding the proper administration of justice. [12] As the fundamental consideration is the interests of justice, the court
will lean in favour of liberty and grant bail where possible, [13] provided the interests of justice will not be prejudiced by
this. [14] Expressed differently, it may be said that bail should not be refused unless there are sufficient grounds for
believing that the accused will fail to observe the conditions of his release. [15] Similarly, the accused's liberty should be
encroached upon as little as the proper administration of justice will permit. [16]
As was suggested above, the court's involvement in the bail contract is anomalous and even undesirable, more so where
the state and the accused have agreed upon acceptable terms of the bail contract. [17] Unfortunately, whereas the
Page 11
prosecutor and the accused may, as a rule of practice, suggest an amount of bail, the court is not bound by the suggestion
and may itself amend and supplement the terms of the contract by fixing the amount (and by adding such other terms as it
may consider expedient). It is suggested that the Act should be amended to allow for the state and the accused to
negotiate the amount and other terms of the contract. Only if consensus cannot be reached between the state and the
accused should the court be empowered to exercise a residual power to determine the amount and conditions of bail. The
accused may do so by applying for variation of the amount or conditions set by the prosecutor. [18] 'Bail bargaining' in the
sense that the police may extract a statement or even a plea of guilty from the accused in exchange for unopposed bail is a
shocking occurrence all too frequently exposed during review proceedings, [19] and should be vigorously discouraged. The
fact of the matter is that police threats in this context are cogent because the police have been shown to have a significant
influence on magistrates' bail decisions. [20]
2.2 Policy considerations

Bail—and procedural matters pertaining to bail—must of necessity be assessed and applied in the light of some fundamental
principles of criminal justice, as well as certain policy considerations which underlie the criminal process from arrest to final
appeal. Some of these principles and policy considerations are discussed below. [21] They provide—to some extent—the
broad background in terms of which the specific statutory provisions pertaining to bail should be interpreted and
applied. [22]
It should also be pointed out that our courts have noted the desirability of summons procedure over arrest. [23]
Unnecessary pre-trial incarceration would in the ordinary course of events lead to a successful bail application. It has rightly
been suggested that arrest should only be resorted to 'if there are concrete circumstances reasonably indicating a “ground
of arrest” such as danger of flight, danger of tampering with the witnesses or with the evidence, and possibly danger of
[24]
repetition in the case of certain specified crimes'. [24] It may be said that if preference is given to arrests rather than
summonses, unnecessary bail applications will proliferate.
Page 12
2.3 Non-penal character of bail [25]

Continued imprisonment which follows upon a decision to refuse bail does not imply the imposition of a penalty. [26] Refusal
of bail is completely non-penal in character in the sense that a criminal sanction is not invoked. The fact that there is
deprivation of liberty is in this context merely incidental to the fact that a deprivation of liberty is also a criminal sanction.
Important practical consequences stem from the above principle. First, the discretion to allow or refuse bail may never be
influenced by punitive notions, for example a notion that an accused's lengthy criminal record is per se sufficient justification
for a refusal of bail. [27] Secondly, the amount that is determined for bail may not be based upon the consideration that a
high amount may have a deterrent effect in respect of possible future perpetrators. [28] Thirdly, bail is not a means that
should be employed in order to deter offenders: the approach of the court should always be to grant bail where it is at all
possible. [29]
In this context, it is important to bear in mind that the principle that bail should be non-penal in character may be traced
back directly to the overarching consideration that the accused is presumed to be innocent until his guilt has been
established in a fair trial. This consideration applies regardless of how heinous the crime with which the accused has been
charged. In C, [30] Conradie J, in referring with approval to Hendricks, [31] Adams, [32] and Baron, [33] summed up the
general tenor of these cases as follows:
They are of the view that the term 'exceptional circumstances' [the existence of w hich has to be proved in certain cases in order to
obtain bail] does not mean that an innocent person may be punished just because he is alleged to have committed a heinous crime.
(My translation)
It is submitted that a court should be careful not to mete out anticipatory punishment to the awaiting-trial accused by
refusing bail in the guise of preventative detention. [34] Unless there are compelling indications that the accused, if released
on bail, would endanger public safety and the like, preventative detention is not justifiable in a democratic state.
Page 13
2.4 Release on bail no substitute for a speedy trial

An accused person has a basic procedural right to be brought to trial within a reasonable period. [35] This right is not
confined to accused persons who are in custody. [36] It is a fundamental right in most Western countries [37] and is
considered an important component of a fair trial. [38] It follows that it is totally improper to view release on bail as a
substitute for the accused's right to be brought to trial within a reasonable period. [39] An unreasonable delay is also unfair
to state witnesses. [40]
Obviously, in setting up a court roll, preference should be given to those accused who are in custody. But this approach
should not be taken too far: the preferential treatment of cases where the accused are in custody should never cause an
unreasonable delay in respect of those cases where the accused happen to enjoy pre-trial liberty.
2.5 Bail hearing and adjudication a matter of urgency

It is sound criminal justice policy to endeavour to obtain judicial adjudication of a bail application as quickly as possible in
order to avoid unwarranted deprivation of liberty. [41] In Hurley v Minister of Law and Order [42] Leon ADJP clearly illustrated
the urgency with which our courts approach matters in which the subject is being deprived of his liberty in the absence of a
judicial order, when he remarked that he would have preferred to have had far more time to furnish his reasons but that
'the matter is one of the utmost urgency as it concerns the liberty of the subject'. [43]
Early statutory provisions in southern Africa recognised the need for the speedy adjudication of bail applications. Some of
the colonies had statutory provisions to the effect that every magistrate hearing an application for bail had to determine,
within twenty-four hours after such application, whether the offence was bailable and, if it were, had to fix the amount of
bail. [44] His failure to come to a decision within the time-limit even rendered him liable to a fine. This form of 'personal
liability' approach was abolished, obviously in order to
Page 14
promote the professional status and judicial functions of the office of magistrate. Accordingly, a similar provision has not
been repeated in the current Act. However, it is surprising and indeed disturbing that the Act is altogether silent on the
matter of urgency. The unfortunate side effect is that lower courts became less involved in the urgency pertaining to bail
applications. Section 60 of the Act (before its 1995 amendment) seemed to confirm this.
Twayie v Minister van Justisie [45] was, however, of special importance with regard to the interpretation of s 60 of the Act,
as it then stood, and the principle that a bail application should be treated as a matter of urgency. In this case it was held
that a lower court is competent and obliged to hear bail applications outside normal hours and on non-court days. Kotze J
(with whom Klopper JP and De Wet J concurred) held as follows: [46]
It requires no argument that a need exists for the grant of bail during 'after hours', w eekends and on holidays at any time after
arrest. Especially not if the general principles underlying the South African administration of criminal justice are given paramountcy. . . .
Every aw aiting-trial prisoner is potentially innocent, and unnecessary restriction of the citizen's freedom runs against the grain of any
civilised sense of justice . . . (My translation)
Kotze J interpreted s 60 against this background and concluded that the words 'first appearance' in that section as it read
at the time did not indicate an intention on the part of the legislature that applications for bail could not be brought prior to
the compulsory first appearance of the accused in the lower court. [47] It was also held that the legislature had no intention
of circumscribing or limiting the court's powers. Kotze J also took the view that s 50 [48] of the Act was no impediment in
the way of a construction that the words 'first appearance' in s 60 in its former guise included a first appearance at the
request of the accused: 'Section 50 deals with the maximum period that runs before appearance and not with the minimum
time that may pass before a bail application.' [49] And further: 'The hypothesis of an accused who after adjournment of his
trial suddenly and for good reason needs to obtain bail over a weekend and accordingly would raise the same question as
that under
Page 15
discussion, also indicates that the s 50 concept of “first appearance” should not be resorted to when s 60 is
interpreted.' [50] (My translation)
Twayie v Minister van Justisie gave real and prompt relief to those accused who were refused so-called 'police bail' [51] in
circumstances where there was no justification for the refusal. It also provided relief to those accused who were being held
in custody for offences in respect of which police bail could not be granted. [52] A practical implication of Twayie v Minister
van Justisie is that each and every magistrate's court should have a magistrate available to hear bail applications 'after
hours'.
The spirit of the decision in Twayie v Minister van Justisie was given effect by the addition in 1995 of two new sub-
sections to s 50 of the Act, in terms of which the door was opened for 'bail applications' [53] and the 'institution of bail
proceedings' [54] outside normal court hours.
This new spirit, so consonant with the sentiments of our new democracy, has, however, been short-lived. By the repeal
of s 50(7) and the amendment of s 50(6) by Act 85 of 1997 the legislature has, on the one hand, removed direct reference
to the accused's right to be brought to court at his own request and prior to his scheduled first appearance; and by the
enactment of s 50(6)(b) it has, on the other hand, stipulated that certain arrested persons are not entitled to be brought
to court outside normal court hours. The irony inherent in this reactionary measure is, of course, striking: a procedural
human right earned under the old order through creative and enlightened judicial interpretation by three Afrikaner judges
sitting as a Full Bench of the Free State Supreme Court, has been summarily taken away by decree of the new, democratic,
constitutional order. This notwithstanding, the Constitutional Court reaffirmed the inherent urgency of bail in S v
Dlamini [55] while the essence of urgency was in fact extended in Garces v Fouche [56] where the Namibia High Court decided
that bail applications after hours were not only competent, but that they could proceed in the absence of a prosecutor who
had been notified of the application but was unwilling to appear after hours to oppose it.
Page 16
2.6 The purpose of bail

Underlying the concept of bail is the presumption of innocence, [57] whereby every person is presumed to be innocent until
he is adjudged guilty. [58] Although not intended as a punitive measure, pre-trial incarceration nevertheless carries a penal
element in that it deprives a prima facie innocent person of his freedom. [59] In this sense the right to bail, as an extension
of the presumption of innocence, is founded on the legality principle of the rule of law. [60] It follows that bail, like the
presumption of innocence, is a procedural human right. [61] Bail procedure was introduced into the law of criminal procedure
to provide a device whereby the right to release pending the determination of the issue between the accused and the state
could be observed while, at the same time, the interests of the state would be protected. Moreover, the bail system
achieves the accrual of advantages to both the accused and the state: the accused may continue a normal life, employment,
the support of his dependants, and avoids confinement which could prejudice his mental and physical well-being; the state
secures the accused's attendance of his trial and avoids the expense of having to maintain him in prison. [62] As Nagel has
put it: [63]
The basic purpose of bail, from society's point of view , has alw ays been and still is to ensure the accused's reappearance for trial. But
pretrial release serves other purposes as w ell, purposes recognised over the last decade as often dispositive of the fairness of the
entire criminal proceeding. Pretrial release allows a man accused of crime to keep the fabric of his life intact, to maintain employment and
family ties in the event he is acquitted or given a suspended sentence or probation. It spares his family the hardship and indignity of
w elfare and enforced separation. It permits the accused to take an active part in planning his defense with counsel, locating witnesses,
proving his capability of staying free in the community without getting into trouble. . . . In the past decade, studies have show n that
those on pretrial release plead guilty less often, are convicted less often, go to prison less often follow ing conviction than those
detained before trial. This is true even w hen
Page 17
the study controls for factors such as employment at the time of the arrest, retained or assigned counsel, family ties, past record and
present charge are lacking. The factor of pretrial release alone show s up as a vitally controlling factor in the outcome of the trial and
sentencing. . . . (Emphasis added.)
In S v Dlamini [64] the Constitutional Court had the following to say with regard to the purpose of bail: [65]
There is w idespread misunderstanding regarding the purpose and effect of bail. Manifestly, much must still be done to instil in the
community a proper understanding of the presumption of innocence and the qualified right to freedom pending trial under s 35(1)(f)
[of the Constitution]. The ugly fact remains, how ever, that public peace and security are at times endangered by the release of
persons charged w ith offences that incite public outrage. . . . Experience has show n that organised community violence, be it
instigated by quasi-political motives or by territorial battles for control of communities for commercial purposes, does subside w hile
ringleaders are in custody. Their arrest and detention on serious charges does instil confidence in the criminal justice system and
does tend to settle disquiet, w hether the arrestees are w ar-lords or drug-lords.
It may be that Kriegler J, who delivered the judgment in S v Dlamini, is correct in the assumption that he purports to make
in the passage quoted above. It is extremely unfortunate, however, that theory, speculation and surmise are elevated to
the status of fact by virtue of judicial notice of the kind that would surely make Wigmore turn in his grave. More unfortunate
still is the implied suggestion that the removal from society of so-called 'ringleaders' may be justified because communities
might be appeased by it, and not because their release on bail would be contrary to the interests of justice. The disturbing
impression left by the Constitutional Court is that pre-trial incarceration based largely on community sentiments or
perceptions is constitutionally justifiable. This impression is not ameliorated by the following reasoning: [66]
That conclusion is based, first, on the inherently temporary nature of aw aiting trial detention w hen w eighed against the compelling
interest in maintaining public peace. In the second place, there is a close relationship and appropriate fit betw een the temporary
w ithholding of liberty and the disruption that release w ould unleash. I do not w ish to be understood as saying anything in favour of
detention w ithout trial. W e are concerned here w ith detention or release in anticipation of a proper trial.
Thus, disturbingly, condonation is given for the pre-trial detention of persons who are presumed to be innocent (and who
may well be completely innocent) and who may, furthermore, be perfectly acceptable bail risks in every other respect, purely
on the basis of the demands of the lynch-mob mentality. When an arrestee's trial may only commence a year—or five years
—after his arrest, and be completed only years later, he could be forgiven for decrying this facile distinction between
detention without trial and 'detention . . . in anticipation of a proper trial' as pure sophistry.
Page 18
These passages from the Constitutional Court judgment have been seized upon with uncharacteristic zeal and alacrity by
certain prosecutors and magistrates who needed little encouragement to revive a virtual detention without trial culture. It is
alarming that not a judicial squeak of dissent was forthcoming from the other Constitutional Court justices. By contrast, in
an important and courageous judgment in Francis [67] the 'innuendo' and 'suggestion' regarding 'ringleaders' and
'community violence' were seen in proper perspective by Donen AJ:
The record is taken up w ith evidence from w hich innuendos w ere sought to be draw n because the Appellants are allegedly members
of PAGAD. There is a further suggestion on record about the possible involvement of gangs in this explosion. There w as even a hint of
third force involvement. None of this is significant for the purpose of the present decision. What is most significant and disturbing for
this particular court is a fourth force which appears to be raising its head amid the spiral of violence which is afflicting our country. The force
to which I refer is the force of fear, paranoia and suspicion caused by the spiral of violence which is affecting the judgment and responses of
people who normally have the best intentions. In this particular case I have no doubt that the persons w ho brought the charges and
the persons w ho resisted the bail application had the best intention in the w orld. W hat they did not do is that they did not study the
facts and they did not study the law . They seem to have been diverted by the above innuendo and suggestion. (Emphasis added.)
It is important to be constantly mindful, therefore, of the purpose of bail and the need for that purpose to be achieved
through acceptable evidence as opposed to speculation and rumour, media campaigns, petitions by pressure groups,
perceptions, innuendo and suggestion. In this regard, the Constitutional Court's caveat expressed in S v Dlamini [68] is to
be welcomed:
Courts w ill no doubt be alive to the danger of public sentiment being orchestrated by pressure groups to serve their ow n ends.
Surprisingly, it was yet another acting judge [69] who was prepared actually to say it as it is:
A court of law must not permit the body politic to give legislative credibility, for whatever reason, to uninformed or ignorant public outcry, or
to w hat the government of the day perceives w ill best assuage those feelings of the general public w hich, if quelled, are calculated to
do no more than to ensure that it be returned to elected office, w hether it deserves to be or not. (Emphasis added.)
[1] See Lansdown & C ampbell South African Criminal Law and Procedure vol v (1982) 311.
[2] Or, where appropriate, the police or the attorney-general (or a prosecutor authorised by him). For a discussion of extra-curial bail see C h 5.
[3] He does so by furnishing security for the state's indemnification by payment of the sum of money determined by the court. The terms of the
contract may be extended as required by the exigencies of the case. See C aldwell Criminology (1965) 350. As to the state's obligation, see Maqungu v
Assistant Magistrate, Whittlesea 1977 (2) SA 359 (E) 360; Mngemane v Attorney-General, Transvaal 1958 (2) SA 84 (W); S v Casker 1971 (4) SA 504
(N). See also Da Costa v The Magistrate, Windhoek 1983 (2) SA 732 (SWA) 747-8.
[4] See also Lansdown & C ampbell 311.
[5] Section 60 of the Act.
[6] The vital role of the court as a quasi-contracting party is not mentioned by Lansdown & C ampbell.
[7] See, for instance, Act 56 of 1955, s 106.
[8] C f Ex parte Estate Phillips 1958 (1) SA 830 (N).
[10] 2002 (1) SAC R 79 (C C ).
[11] A court will always retain the power to call for evidence so as to enable it to exercise its discretion—cf s 60(2) of the Act. This discretionary
power will therefore supersede any agreement which may have been reached between the parties.
[12] S v Mhlawli and Others 1963 (3) SA 795 (C ) 796; S v Essack 1965 (2) SA 161 (D); S v Smith 1969 (4) SA 175 (N).
[13] Essack (above) 162; Van der Vyver Seven Lectures on Human Rights (1976) 101.
[14] S v Smith (above) 177; McCarthy 1906 TS 657 659; Hafferjee 1932 NPD 518. See also Street Freedom, the Individual and the Law (1982) 43.
[15] Rentoul in Brierly (ed) Law and Government: in Principle and Practice (1948) 147.
[16] S v Smith (above) 177. The thoughts expressed in the text corresponding with footnotes 12 and 13 are, however, qualified by the provisions of
s 60(11) of the Act and the wording of s 60(1)(a) of the Act versus s 35(l)(f) of the C onstitution. These aspects are discussed in para 4.7.
[17] If neither party presents any evidence, however, the court is nevertheless required to satisfy itself that there is sufficient and reliable
information before it to enable it to make a proper decision, and to call for such information where it is lacking (s 60(2)(b) and (c) and s 60(3) of the
Act). In Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SAC R 127 (O) it was held that ss 60(3) and 60(10) of the Act characterise the bail
procedure as being 'inquisitorial beyond any doubt'. (C ontrast, however, S v Mbele and Another 1996 (1) SAC R 212 (W) 216-17.)
[18] As to 'bail bargaining' see Bottoms & McC lean Defendants in the Criminal Process (1976) 188; Ericson & Baranek The Ordering of Justice (1982)
61. For a general discussion of bargaining between state and accused, see Van Zyl Smit & Isakow 1986 SACC 3.
[19] See, for example, S v Joone 1973 (1) SA 841 (C ).
[20] See, for example, Ericson & Baranek 61; Bottoms & McC lean 196; Bottomley Decisions in the Penal Process (1973) 84-103; Steytler 1982 SACC
3.
[21] C hs 3 and 4.
[22] See, for example, C h 6.
[23] Tsose v Minister of Justice 1951 (3) SA 10 (A).
[24] Van Rooyen 1975 AJ 70 75.
[25] See also para 2.6.
[26] Slovenko 1956 Tulane LR 173: 'The purpose of committing to jail before trial an accused who does not furnish bond is not to punish him (indeed,
the state has no right to punish because the guilt of the individual has not been established), but to secure his presence in order that he may be tried.'
(Emphasis added.)
[27] See, generally, para 9.2.
[28] S v Visser 1975 (2) SA 342 (C ).
[29] S v Visser (above) 342G-343A.
[30] 1998 (2) SAC R 721 (C ) 726c: 'Hulle gaan van die standpunt uit dat “buitengewone omstandighede” nie beteken dat 'n onskuldige persoon
gestraf kan word net omdat hy 'n bepaalde gruwelike misdryf na bewering gepleeg het nie.'
[31] C PD case no A714/98, 1 October 1998 (unreported).
[34] S v Acheson 1991 (2) SA 805 (Nm). See also para 2.6 and C h 3.
[35] See s 35(3)(d) of the C onstitution. In S v Geritis 1966 (1) SA 753 (W) it was emphasised that an accused person is presumed innocent and is
entitled to expeditious determination of his guilt or innocence. See also, generally, S v Magoda 1984 (4) SA 462 (C ).
[36] See, generally, Steytler 1985 SACC 168-72.
[37] See, generally, Steytler 1985 SACC 168.
[38] The Sixth Amendment (adopted in 1791) to the C onstitution of the United States guarantees, inter alia, that an accused 'shall enjoy the right to
a speedy trial . . .'.
[39] Andrews (ed) Human Rights in Criminal Procedure: A Comparative Study (1982) 51.
[40] Steytler 1985 SACC 168 169; Mamba 1966 (1) PH H183 (C ).
[41] Gillies The Law of Criminal Investigation (1982) 186; Van Rooyen 1975 AJ 70 73. C f the facts in Ex parte Bassano 10 C TR 464.
[42] 1985 (4) SA 709 (D).
[43] At 715B (emphasis added). See also S v Kathrada 1961 (3) SA 593 (T) 595-6; S v Nichas 1977 (1) SA 257 (C ) 261.
[44] See, for example, C ape Ordinance 40 of 1828, s 50; Transvaal Ordinance 1 of 1903, s 100; and Natal Ordinance 18 of 1845, s 58.
[45] 1986 (2) SA 101 (O).
[46] At 104E-F: 'Dat daar 'n behoefte aan die verlening van borgtog gedurende “na ure”, naweke en op vakansiedae te eniger tyd vanaf arrestasie
bestaan, behoef geen betoog nie. Veral nie as die algemene beginsels, wat die Suid-Afrikaanse strafregpleging onderlê, vooropgestel word nie. . . .
Elke verhoorafwagtende is 'n potensiële onskuldige, en onnodige inperking van die burger se vryheid druis teen alle beskaafde regsgevoel in. . . .' It is
astonishing that a C hief Magistrate could adopt the attitude that it would be 'unlawful' for him to hear a bail application 'after hours'—see 102C .
[47] Section 60(1) at the time read as follows:
[47] Section 60(1) at the time read as follows:
'An accused who is in custody in respect of any offence may at his first appearance in a lower court or at any stage after such appearance . . . apply
to such court . . . to be released on bail . . .'
It is submitted that the decision in Twayie v Minister van Justisie remains equally apposite with regard to the words 'at any stage' in the current s
60(1)(a). But see the 1997 amendment of the Act, which is discussed below.
[48] Section 50 sets the maximum time which may expire between arrest and the accused's first appearance in a lower court.
[49] At 103I-J.
[50] At 105G: 'Artikel 50 handel met die maksimum tydperk wat voor verskyning verloop en nie met die minimum tyd wat voor 'n borgaansoek kan
verloop nie'. And further: 'Die hipotese van 'n beskuldigde wat na verdaging van sy verhoor weens 'n goeie rede skielik gedurende 'n naweek borgtog
moet verkry en dus dieselfde vraag as die onderhawige sal laat ontstaan, toon ook aan dat die art 50-begrip van “eerste verskyning” nie by uitleg van
art 60 aangegryp moet word nie.'
[51] See C h 5.
[52] See C h 5.
[53] Section 50(6) of the Act as it read prior to 1998.
[54] Section 50(7) of the Act, since repealed.
[55] S v Dlamini 1999 (2) SAC R 51 (C C ) para [11].
[56] 1998 (2) SAC R 451 (Nm).
[57] As to which, see C h 3. See also Essack (above) 162; Smith (above) 177; Benjamin (1883) 3 EDL 337 338.
[58] Rentoul (above) 147; C aldwell 369; Lansdown & C ampbell (above) 311; Mathews Law, Order and Liberty in South Africa (1971) 49; Lewis et al
An Introduction to the Courts and Judicial Process (1978) 145; Harcourt (ed) Swift's Law of Criminal Procedure (1969) 171; Slovenko 1956 Tulane LR
173.
[59] For a discussion of bail in the context of penal considerations, see para 2.3. See also Wice Freedom For Sale (1974) 6. It is generally accepted in
the United States of America that one of the perceived purposes of refusal of bail is to punish the accused who expects to 'beat the system', or to give
the accused 'a taste of prison' by setting excessive bail. See Wice 5; Suffet in C ole (ed) Criminal Justice (1976) 351; Lewis et al 146; Foote 1954 UPaLR
1031; Goldkamp in Atkins & Pogrebin (eds) The Invisible Justice System: Discretion and the Law (1982) 116. In a third of cases in which bail is refused
in England, punitive motives are involved. See Royal Commission on the Penal System Vol ii Part 1 (HMSO 1967) 132-51. For a South African case in
point, see R v Rose (1898) 18 C ox C C 717-719; and see also S v Acheson (above).
[60] The principle, since modified in definition but not in substance, was formulated by Dicey Introduction to the Study of the Law of the Constitution
(1959) 188, as follows: 'No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land.' See also Beinart 1962 AJ 99; Mathews 1964 SALJ 312; Mathews in Khan (ed) Fiat Iustitia
(1983) 301.
[61] C f Van der Vyver 88, 101. In the United States of America release pending trial has been described as a constitutional right—see Quinney The
Social Reality of Crime (1970) 143; C aldwell 350; Lewis et al 145. As to whether or not bail is a right in South Africa, see C h 4.
[62] C aldwell 369; Nagel Rights of the Accused (1972) 177-8. In Stack v Boyle 342 US 1 4 the court remarked that pre-trial release protected the
integrity of the criminal justice system.
[63] Nagel 177-8. (Emphasis added.)
[64] 1999 (2) SAC R 51 (C C ), 1999 (4) SA 623 (C C ).
[65] In para [55].
[66] In para [56].
[67] C PD case no A981/98, 2 December 1998 (unreported).
[68] Above, para [56].
[69] Slomovitz AJ in S v Schietekat 1999 (1) SAC R 100 (C ) 104 (which did not survive the C onstitutional C ourt's criticism).
Page 19
3
The presumption of innocence
3.1 The content of the presumption

In terms of s 35(3)(h) of the Constitution, every accused person has the right to a fair trial, which includes the right to be
presumed innocent. This presumption of innocence was described in a leading English case, Woolmington v DPP [1] as 'the
“golden thread” woven throughout the web of the criminal law'. Similar sentiments were expressed by the Supreme Court of
Canada [2] and by a future South African Chief Justice in the High Court of Namibia. [3] The presumption, which is an integral
component of the rule of law, [4] has been said to be 'referable and integral to the general protection of life, liberty and
security of the person . . .' [5] and fundamental to the protection of human rights. [6] In South Africa, recognition of the
content, importance and reach of the presumption of innocence has been expressed in several judgments. Of particular
interest are those that accord the presumption its full meaning, ie that it applies not only to the trial process itself, but also
to pre-trial processes such as search and seizure, bail, and the exercise of his powers by the Attorney-General. Thus, in
Nhlabathi v Adjunk-Prokureur-generaal, Transvaal [7] Coetzee J expressed himself as follows:
This fundamental idea that 'illegal deprivation of liberty is a threat to the very foundation of a society based on law and order' is a golden
standard for the interpretation of any statute which applies to the prosecution of citizens where the curtailment of freedom of movement or
liberty in general is concerned. It is accordingly of the utmost importance that this should never be lost sight of, and the
Page 20
function of the Attorney-General is one that must be exercised strictly and meticulously w ithin the framew ork of the pow ers granted
by the statute; it is not one that grants him any carte blanche to prosecute or act against persons in any manner and in any court. To
me, this view clearly lies w ithin the w hole scheme of the Criminal Procedure Act. It is an impossible task to cite each section that
prompts one to hold this view . The unbroken thread that runs through this statute is that before conviction a person may be deprived
of his liberty only in w ays that are specifically stipulated, and he may be acted against only in a particular, stipulated manner. This, in
light of the w ords of the learned Chief Justice, is one of the most significant indications that, at the southern tip of Africa, w e still
remain a civilised State. (My translation)
In Highstead Entertainment (Pty) Ltd v Minister of Law and Order [8] King J quoted with approval the words of Coetzee J in
the context of pre-trial conduct by the Attorney-General which included an 'ulterior reason' for issuing warrants, seizures or
arrest, namely 'to effect the closing down of applicant's business.' The court held that 'this will affect the livelihood of these
[sic] concerned with applicant . . .' [9]
The content of the presumption of innocence, however, has been held on occasion [10] to embrace 'the state's burden of
proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he
or she need respond, either by testifying or by calling other evidence'. This would seem to imply that the presumption of
innocence may be confined to operating at the accused's trial, where his guilt or innocence of committing the offence on
indictment is at issue. While this is indeed the primary thrust of the presumption, to confine its application to the trial
process would be an unnecessarily restrictive and unwarranted curtailment of its all-pervasive influence in the criminal
process. Thus, in Pearson [11] the following was said:
This operation of the presumption of innocence at trial, w here the accused's guilt of an offence is in issue, does not, in my opinion,
exhaust the operation in the criminal process of the presumption of innocence as a principle of fundamental justice. The presumption
of innocence, as a substantive principle of fundamental justice 'protects the fundamental liberty and human dignity of any and every
person accused by the State of criminal conduct': Oakes, supra, at p 333. In my view , the presumption of innocence is an animating
principle throughout the criminal justice process. The fact that it comes to be applied in its strict evidentiary sense at trial pursuant to
s 11(d) of the Charter, in no w ay diminishes the broader principle of fundamental justice that the starting-point for any proposed
deprivation of life, liberty or security of the person of anyone charged with or suspected of an offence must be that the person is
innocent. [12]
It is submitted that the Canadian view espoused above is equally applicable to the criminal process in South Africa, and that
our courts will give an extended meaning to the provisions of s 35(3)(h) of the Constitution and to the content
Page 21
of the presumption itself so as to include its operation at all stages of the process. In this regard, it is of interest that the
European Court of Human Rights has expressed itself as follows:
The presumption of innocence w ill be violated if, w ithout the accused having previously been proved guilty according to the law . . ., a
judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of a formal finding; it suffices
if there is some reasoning suggesting that the court regards the accused as guilty. [13]
3.2 The importance of the presumption in a constitutional democracy

A court, in the interpretation of the Bill of Rights, is enjoined by s 39(1)(a) of the Constitution to promote the values
underlying a democratic society based on human dignity, equality and freedom. Furthermore, in such interpretation a court
is required by s 39(1)(b) of the Constitution to take into account international law. [14] In addition, s 39(2) of the
Constitution stipulates that each court, in the interpretation of any legislation, shall promote the spirit and objectives of the
Bill of Rights.
As was pointed out above, [15] the presumption of innocence accrues to every accused person [16] as a corollary of his
right to a fair trial. In construing the Bill of Rights, and specifically s 35(3)(h) (which entrenches the presumption of
innocence), a court is therefore compelled to consider the right to be presumed innocent in a broad sense which would
accord with the spirit and objectives of those provisions of the Constitution which were specifically enacted to promote and
protect fundamental human rights; and also to give content to those rights (including the presumption of innocence) in a
manner commensurate with the expectations of a democratic society based on human dignity, equality and freedom. It is
submitted that, against this background, the presumption of innocence should be seen as representing an important and
fundamental right that should be extensively interpreted and applied so as to embrace all pre-trial procedures or
proceedings that are capable of impacting on the fairness of the ultimate trial. Thus, in R v Pearson [17] the Canadian
Supreme Court said the following:
In determining the precise content of the substantive principle [that is, the presumption of innocence] in a specific context, the
examples given in the Charter itself. . . w ill be instructive, as w ill 'the basic principles of penal policy that have animated legislative
and judicial practice in Canada and other common law jurisdictions': R v Lyons, supra, at p 21. Examples are legion of how the various
stages of the criminal process have accommodated themselves to the fundamental principle that the assumed innocence of an
accused or a suspect is the starting-point for any proposed interference w ith that person's life, liberty, or security of
Page 22
the person. In general, one w ho proposes to lay an information [charge] must believe, on reasonable grounds, that an offence has
been committed . . . the justice receiving the information must consider, before issuing process, that a case for doing so has been
made out . . . much the same may be said w ith respect to the pow er to arrest. In general, a peace officer must have reasonable
grounds to effect the arrest. There must be reasonable and probable grounds to demand a breath sample . . . , and reasonable
grounds must be show n before a search w arrant may be issued. . . . Each of these cases may be seen as an example of the broad
but flexible scope of the presumption of innocence as a principle of fundamental justice. . . .
These considerations, it is submitted, reflect the sentiments contained in ss 39(1)(a) and 39(2) of the Constitution, and
apply equally in the South African context. For these reasons, it is submitted to be incorrect to say that '[t]he constitutional
right to be presumed innocence [sic] is specified in relation to the right to a fair trial. It therefore does not apply to
proceedings outside the definition of a criminal trial'. [18]
As regards the constitutional requirement that international law should be taken into account in the interpretation of the
Bill of Rights, [19] it is pointed out that the European Court of Human Rights has held that, to continue to detain an
unconvicted person notwithstanding the provisions of article 5(3) of the European Convention on Human Rights, was 'a
serious departure from the rules of respect for individual liberty and of the presumption of innocence'. [20] It is therefore
apparent that, as with our domestic law, international law recognises the importance of the presumption of innocence during
the pre-trial phase.
3.3 The presumption and pre-trial liberty

In the American case of Stack v Boyle [21] the court held that the presumption of innocence accrues to the accused before
trial. The court also referred to the 'traditional right to freedom before conviction'. However, neither in the American courts,
nor in their South African counterparts, has the presumption of innocence been unanimously and unequivocally accepted as
a rule that operates specifically in favour of the accused's pre-trial liberty. Thus, in the American case of Bell v Wolfish [22]
the court remarked that the presumption of innocence concerns only the allocation of the burden of proof in criminal trials,
and that it does not operate to provide the accused with his pre-trial release. [23] Similarly, in South Africa it was held in S v
Baker [24] that the accused, upon
Page 23
applying for bail in the absence of indictments, bore the onus of showing in some measure why they considered themselves
innocent. It is submitted that the American and South African view thus expressed is unjustifiably narrow, and does not
accord the presumption of innocence its deserved place of importance in the criminal process, both during and before trial.
As will be seen in the following paragraph, different jurisdictions (and indeed different courts within the same jurisdiction)
have adopted different approaches or emphases to the application of the presumption of innocence in bail hearings. This
does not mean to say, however, that the presumption has no application at the pre-trial stage: clearly it comes into play at
such pre-trial stages as, for example, when a warrant of arrest or a search warrant is to be authorised. [25] At such stages
the principle does not necessarily require anything in the nature of proof beyond reasonable doubt, because the particular step in the
process does not involve a determination of guilt. Precisely w hat is required depends upon the basic tenets of our legal system as
exemplified by specific Charter rights, basic principles of penal policy as view ed in the light of 'an analysis of the nature, sources,
rationale and essential role of that principle w ithin the judicial process and in our legal system, as it evolves'. [26]
Chaskalson et al [27] are supported when they write (in express reaffirmation of the legality principle of the rule of law) that
[p]re-trial treatment of the accused should proceed from the assumption that he is innocent and his basic rights are not to be
disturbed or ignored on an unconstitutional assumption of guilt before it is proved by the State in a fair public trial before an ordinary
court of the land.
3.4 Application of the presumption to the bail process

In S v Dlamini [28] the Constitutional Court said the following:
[11] Furthermore, a bail hearing is a unique judicial function. It is obvious that the peculiar requirements of bail as an interlocutory
and inherently urgent step w ere kept in mind w hen the statute w as drafted. Although it is intended to be a formal court procedure, it
is considerably less formal than a trial. Thus the evidentiary material proffered need not comply w ith the strict rules of oral or w ritten
evidence. Also, although bail, like the trial, is essentially adversarial, the inquisitorial pow ers of the presiding officer are greater. An
important point to note here about bail proceedings is so self-evident that it is often overlooked. It is that there is a fundamental difference
between the objective of bail proceedings and that of the trial. In a bail application the enquiry is not really concerned with the question of
guilt. That is the task of the trial court. The court hearing the bail application is concerned with the question of possible guilt only to the
extent that it may bear on where the interests of justice lie in regard to bail. The focus at the bail stage is to decide w hether the
interests of justice permit the release of the accused pending trial; and that entails in the main protecting the investigation and
prosecution of the case against hindrance.
Page 24
In similar vein is the following South African academic authority: [29]

The objective of the right to bail is to minimise the interference w ith an accused's freedom and to avoid anticipatory punishment
before conviction and sentence. In this sense the right reflects the same concern as the presumption of innocence; an accused should
not be punished for an offence for w hich he or she has not been convicted. How ever, the right should not be seen as a consequence
or expression of the right to be presumed innocent contained in section 35(3)(h) of the Constitution. The presumption of innocence is
confined to procedural and evidential issues, burdening the state w ith the onus of proving an accused guilty beyond reasonable
doubt. The bail decision, on the other hand, is made w ith reference to the interests of justice w here the likely guilt of an accused is a
relevant factor. Thus, prior to the trial on the merits, the court may take into account that there is a strong case against an accused
and that if he or she w ere released, there w ould be a real incentive to evade trial or destroy evidence. The right to be released on
bail and the right to be presumed innocent are thus to be view ed as 'parallel rights' giving effect to the same principle at different
stages of the proceedings and in different forms.
The reference to 'parallel rights' is derived from the judgment of the Canadian Supreme Court in R v Pearson, [30] where
that court was called upon to decide the constitutional validity of certain sections of the Canadian Criminal Code. At issue
was the question whether the Criminal Code violated the provisions of s 11(d) and s 11(e) of the Canadian Charter of Rights
and Freedoms. (Section 11(d) entrenched the presumption of innocence at trial stage, while s 11(e) guaranteed the right
not to be denied reasonable bail without just cause.) Lest the above-quoted passages be misunderstood to imply that, in
Pearson's case, the application of the presumption of innocence at bail hearings was excluded, the following dictum of the
Canadian Supreme Court is worth noting: [31]
View ed in this light, s 11(d) and s 11(e) are parallel rights. Section 11(e) entrenches the effect of the presumption of innocence at the
bail stage of the criminal process. Section 11(d) does the same at the trial stage. Paragraphs (d) and (e) define the procedural content
of the presumption of innocence at the bail and trial stages of the criminal process, and constitute both the extent and the limit of that
presumption at those stages. The substantive right in s 7 to be presumed innocent is operative at both the bail and trial stages, in the
sense that it creates a legal rule that the accused is presumed legally innocent until proven guilty, but it does not contain any
procedural content beyond that contained in s 11 (d) and (e).
Fortunately, the weight of judicial opinion in South Africa appears to favour the notion that the accused is presumed
innocent until he is proven guilty, and that such presumed innocence operates in bail hearings. [32] This would be the case
even where a strong prima facie case against the accused exists. Thus, in S v Essack [33] the court said the following:
In dealing w ith an application of this nature, it is necessary to strike a balance as far as that can be done, betw een protecting the
liberty of the individual and safeguarding and ensuring the
Page 25
proper administration of justice. I refer, in acknow ledgement of these w ords, to the judgment of Diemont J in the case S v Mhlawli and
Others 1963 (3) SA 795 (C) at 796. The presumption of innocence operates in favour of the Applicant even w here it is said that there
is a strong prima facie case against him, but if there are indications that the proper administration of justice and the safeguarding
thereof may be defeated or frustrated if he is allow ed out on bail, the Court w ould be fully justified in refusing to allow him bail.
In S v Ramgobin (1) [34] a Full Bench of the Natal Supreme Court referred with approval to the recognition of the
presumption of innocence in bail applications; and this approach was echoed by Milne JP in S v Ramgobin (2) [35] when he
referred to the accused's 'ancient and fundamental right' to bail. [36] And in Twayie v Minister van Justisie [37] a Full Bench of
the Orange Free State Supreme Court observed that '[e]very person awaiting trial is potentially innocent, and unnecessary
restriction of the citizen's liberty goes against the grain of all civilised perceptions of justice . . .' [38] (My translation)
[1] [1935] AC 462 (HL) 481. See, generally, Naldi Constitutional Rights in Namibia (1995) 68.
[2] R v Pearson (1992) 77 C C C (3d) 124 (SC C ) 135.
[3] S v Acheson 1991 (2) SA 805 (Nm) 822.
[4] See para 2.6.
[5] R v Oakes (1986) 24 C C C (3d) 321 333.
[6] McGoldrick The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991) 405.
[7] 1978 (3) SA 620 (W) 630A-D (emphasis added). The original text reads: 'Hierdie grondliggende gedagte dat “illegal deprivation of liberty is a
threat to the very foundation of a society based on law and order” is 'n goue rigsnoer by die vertolking van enige statuut wat betrekking het op die
vervolging van landsburgers waar die inperking van Òf bewegingsvryheid Òf vryheid in die algemeen ter sprake kom. Dit is derhalwe uiters belangrik
dat dit nooit uit die oog verloor word nie en die hoë amp wat die Prokureur-generaal beklee is een wat noulettend en nougeset binne die raamwerk van
die statuut wat die magte verleen, uitgevoer moet word; dit is nie een wat hom enige mate van carte blanche gee om na goeddunke persone aan te
kla of te vervolg of teen hulle op te tree op enige wyse en in enige hof nie. Hierdie siening lê vir my duidelik binne die hele patroon van die
Strafproseswet. Dit is 'n onbegonne taak om iedere artikel wat mens hiertoe noop aan te haal. Die deurlopende gedagte wat vervat word in hierdie
wetgewing is dat slegs op besondere wyse, voordat 'n persoon skuldig bevind is, sy vryheid hom ontneem kan word, en slegs op besondere
neergelegde wyses daar teen hom opgetree mag word. Hierdie is, in die lig van die woorde van die geleerde Hoofregter, een van die vernaamste
kentekens vir my dat ons aan die suidpunt van Afrika nog steeds in 'n beskaafde Staat verkeer.'
[8] 1994 (1) SA 387 (C ) 394.
[9] At 394H-I.
[10] R v Du Bois (1985) 22 C C C (3d) 513 531.
[11] Above, 135.
[12] Emphasis added.
[13] Minelli v Switzerland Series A, Vol 62 (1983) para 37-8 (EC HR).
[14] Section 39(1)(c) of the C onstitution also empowers a court, in its discretion, to take account of foreign law.
[15] See para 3.1.
[16] See s 35(3)(h) of the C onstitution.
[17] (1992) 77 C C C (3d) 124 (SC C ) 136-7.
[18] Schwikkard The Presumption of Innocence (1999) 84. C f Nortjé v Attorney-General, Cape 1995 (1) SAC R 446 (C ); S v Mbolombo 1995 (5)
BC LR 614 (C ).
[19] The presumption of innocence is, for instance, guaranteed by article 12(1)(d) of the Namibian C onstitution; article 11(1) of the Universal
Declaration of Human Rights; article 6(2) of the European C onvention on Human Rights; and article 14(2) of the International C ovenant on C ivil and
Political Rights.
[20] Stögemüller v Austria 10 November 1969 Series A9 para 4. See also Steytler Constitutional Criminal Procedure (1998) 132; Minelli v Switzerland
(above).
[21] 342 US 1 4.
[22] 342 US 520 533.
[23] C ontrast Jett 1985 American Cr LR 805 832.
[24] 1965 (1) SA 821 (W).
[25] See, for example, Benjamin (1883) 3 EDL 337 338; S v Essack 1965 (2) SA 161 (D) 162; S v Smith 1969 (4) SA 175 (N) 177; and the cases
cited in para 3.4 and in C h 4.
[26] R v Pearson (1992) 77 C C C (3d) 124 (SC C ) 136-7.
[27] Constitutional Law of South Africa (1996) para 27.3.
[28] 1999 (2) SAC R 51 (C C ), 1999 (4) SA 623 (C C ) at para [11]. Emphasis added.
[29] Steytler 133-4.
[30] (1992) 77 C C C (3d) 124 (SC C ).
[31] Pearson (above) 139. (Emphasis added)
[32] See, for example, Benjamin (above); S v Essack (above) 162; S v Smith (above) 177.
[33] Above, 162C -E. See also S v Letaona [1998] 1 All SA 107 (W) 110.
[34] 1985 (3) SA 587 (N).
[35] 1985 (4) SA 130 (N).
[36] However, the presumption of innocence should not be over-emphasised when it comes to a consideration of the merits of a bail application, for
the court may in fact 'serve the needs of justice' by refusing bail if there is 'any cognizable indication' that the accused will not stand trial if released on
bail—S v Fourie 1973 (1) SA 100 (D) 101. It is important to bear in mind that when bail is considered following conviction, and pending appeal, the
presumption of innocence is no longer a factor in the equation—see C h 15.
[37] 1986 (2) SA 101 (O) 104. See also Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A).
[38] The original text reads: 'Elke verhoorafwagtende is 'n potensiële onskuldige, en onnodige inperking van die burger se vryheid druis teen alle
beskaafde regsgevoel in . . .'
Page 26
4
The right to bail
4.1 The right to liberty

The presumption of innocence [1] implies that no person shall be punished until such time as the presumption has been
rebutted by proof beyond reasonable doubt [2] of his guilt. The Diceyan formulation of the legality principle of the rule of
law [3] sets a similar prohibition against pre-trial punishment. However, studies have shown that most magistrates consider
that the accused is probably not innocent for the simple (though startling) reason that the police would then not have
arrested him. [4] It may therefore be postulated that prior to his trial the accused is presumed by the law to be innocent [5]
while he is regarded as probably guilty by the court having the power to grant or refuse bail. This, of course, does not rebut
the presumption of innocence. It follows that the law continues to presume the accused's innocence until his guilt has been
established by due process of the law.
It is implicit in the above that the accused has a right to liberty. Section 12(1)(a) and (b) of the Bill of Rights entrenches
the right to liberty and security of the person, as follows:
12(1) Everyone has the right to freedom and security of the person, w hich includes the right—
(a) not to be deprived of freedom arbitrarily or w ithout just cause;
(b) not to be detained w ithout trial . . .
As will be seen below, s 60(1)(a) of the Act furthermore stipulates that, subject to certain provisos, an accused who is in
custody 'shall . . . be entitled to be released on bail at any stage preceding his or her conviction . . .'
4.2 The right to bail in some other jurisdictions

It may be postulated as a general proposition that the right to bail is recognised to one degree or another by most
jurisdictions practising the Anglo-American system of criminal procedure. In the United States of America, for instance, it is
presumed that an accused person is entitled to non-cash bail (that is, release on the strength of his written undertaking to
stand his trial) [6] in non-capital cases. This right, however, is not absolute, and bail may be refused in appropriate
Page 27
circumstances. [7] Similarly, in Australia the right to bail in respect of less serious offences accrues to an accused person. [8]
Again, however, this right is not absolute, [9] although the state has to prove exceptions to it on a balance of
probabilities. [10]
The subject of bail in England is governed by the Bail Act 1976. Section 4(1) of the Bail Act creates a presumption in
favour of bail which may, however, be forfeited in certain exceptional circumstances. In terms of s 3(6A) of the Bail Act the
grant of bail in cases of murder is subject to a compulsory condition that the accused be medically examined to assess his
mental condition. Section 4(5) of the Bail Act, read with Schedule 1, provides that an accused person must be granted bail
except in specified circumstances. Where a court refuses bail, it has a duty to reconsider the question of bail at every
subsequent appearance of the accused.
In the case of offences where the likely sentence is non-custodial, bail need nevertheless not be granted if, in essence,
the accused previously failed to comply with bail conditions. [11] Where an offence is, however, punishable with
imprisonment, bail need not be granted if the court is satisfied that substantial grounds exist for believing that the accused
will, for example, fail to stand his trial, or will commit further offences while on bail. In cases of murder, culpable homicide,
rape, attempted murder and attempted rape the court, if it grants bail, is required to note its reasons on the record. [12]
Bail may not be granted in cases of treason, except by order of a judge of the High Court, or the Secretary of State. [13]
If bail is refused because of improper motive or malice, a magistrate or justice of the peace may be indicted [14] or sued. [15]
In Canada, the Criminal Code deals with the right to bail in s 515, which provides that an accused is to be released in the
least onerous manner possible. Section 515(1) provides for a presumption in favour of release without conditions, while s
515(2) provides for conditional release. In terms of s 515(5), where bail is refused, reasons for such refusal must be stated
on the record. Section 515(6) creates a reverse onus provision that is activated where, for example, the accused is charged
with an indictable offence while on bail for another indictable offence, or is charged with having committed a serious drug
offence. Section 515(10) of the Criminal Code provides that the accused's detention is justified only on two grounds,
namely:
(a) On the primary ground that his detention is necessary to ensure his attendance in court in order to be dealt with
according to law; and
Page 28
(b) On the secondary grounds (the applicability of which shall be determined only in the event that and after it is
determined that his detention is not justified on the primary ground referred to in paragraph (a) that his
detention is necessary in the public interest or for the protection or safety of the public, having regard to all of
the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit
a criminal offence or an interference with the administration of justice.
Section 515 of the Canadian Criminal Code co-exists, of course, with s 11(e) of the Charter of Rights and Freedoms, which
provides that 'any person charged with an offence has the right . . . not to be denied reasonable bail without just
cause'. [16] It has been held that the two grounds upon which a refusal of bail may be justified in terms of s 515(10) of the
Criminal Code constitute 'just cause' for a denial of bail in accordance with s 11(e) of the Charter of Rights and
Freedoms. [17]
In both R v Pearson [18] and R v Morales [19] the reverse onus provision of the Criminal Code was upheld as
constitutional. [20]
In the United States of America the right to bail is guaranteed by the Eighth Amendment to the American Constitution,
which reads that '(e)xcessive bail shall not be required'. One school of thought has maintained that the Amendment does
not in fact confer a right to bail: the argument is based on the 'excessive bail' provision of the English Bill of Rights of 1689,
which was not prompted by 'the well-established statutory provisions which carefully enumerated which offences were
bailable and which were not, but rather by judicial circumvention of the protections of the Habeas Corpus Act by setting
prohibitively high bail for bailable offences. The English “excessive bail” clause was therefore developed as a specific remedy
for judicial abuse of the bail procedure as otherwise established by law and did not imply any right to bail.' [21] This view
found favour with, and was adopted by, the Supreme Court in Carlson v Landon, [22] where it was said:
The bail clause w as lifted w ith slight changes from the English Bill of Rights Act. In England that clause has never been thought to
accord a right to bail in all cases, but merely to provide that bail not be excessive in those cases w here it is proper to grant bail.
W hen this clause w as carried over into our Bill of Rights, nothing w as said that indicated any different concept.
However, Carlson v Landon was a civil case, and those arguing in favour of an interpretation of the Amendment as granting
a general right to bail pointed out
Page 29
that the dictum was indeed obiter insofar as it related to criminal matters. Significantly, the case of Stack v Boyle [23] was
to the following effect:
The right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of
punishment prior to conviction. . . . Unless the right to bail before trial is preserved, the presumption of innocence, secured only after
centuries of struggle, would lose its meaning. (Emphasis added.)
In United States v Salerno [24] a challenge was made to the validity of the Bail Reform Act, 1984 (which required that the
challenger shows that no set of circumstances exists under which the act would be valid). The challenge was directed at the
act's sweep, which went beyond permitting the denial of bail on the grounds of flight risk alone. The Supreme Court held
that the judgment in Stack v Boyle was 'far too slender a reed' on which to rest the argument that the Amendment grants
a right to bail calculated only on flight risk, [25] and went on to hold:
W e need not decide today w hether the Excessive Bail Clause [of the Eighth Amendment] speaks at all to Congress' [26] pow er to
define the classes of criminal arrestees w ho shall be admitted to bail. . . . Nothing in the text of the Bail Clause limits permissible
government considerations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the
government's proposed conditions of release or detention not be “excessive” in light of the perceived evil. Of course, to determine
w hether the government's response is excessive, w e must compare that response against the interest the government seeks to
protect by means of that response. Thus, w hen the government has admitted that its only interest is in preventing flight, bail must be
set by a court at a sum designed to ensure that goal, and no more. . . . W e believe that w hen Congress has mandated detention on
the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on
bail. [27]
As far as international law is concerned, article 5(3) of the European Convention on Human Rights provides that an
awaiting-trial accused shall, failing a trial within a reasonable time, be entitled to his release pending trial, upon appropriate
conditions. Article 9(3) of the International Covenant on Civil and Political Rights provides:
It shall not be the general rule that persons aw aiting trial shall be detained in custody, but release may be subject to guarantees to
appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
It is significant that, in the opinion of the United Nations Human Rights Committee, neither further investigation of the
charges against the accused, nor the seriousness of the crime, justifies prolonged pre-trial detention. [28]
It may accordingly be said that, in a number of other, relevant jurisdictions, a right to bail exists, but that, without
exception, this is a qualified right.
Page 30
4.3 Theoretical basis of the right to bail in South Africa

The axis around which the bail provisions contained in Chapter 9 of the Act revolve, is provided by s 60(1)(a) of the Act,
which reads as follows:
An accused w ho is in custody in respect of any offence shall, subject to the provisions of section 50(6), be entitled to be released on
bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so
permit.
In its attempt to clarify the bail provisions that are to be found in the Act and in the Constitution, the Constitutional Court
in S v Dlamini [29] had the following to say:
[5] The starting point of the exercise is s 35(1)(f) of the Constitution w hich provides the principal template against w hich Chapter 9 of
the CPA must be measured. It reads as follow s:
'Everyone w ho is arrested for allegedly committing an offence has the right . . .
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.'
The context of that provision is the rest of s 35(1) and s 35(2), w hich protect the rights of arrested and detained persons. Section
35(1) spells out the rights of arrested persons; the right to remain silent; to be informed of the right and of the consequences of
w aiving it; and the right not to be compelled to make an admission or confession. Then, particularly relevant to the present context, s
35(1) affords an arrestee the right to be brought before a court as soon as reasonably possible, but w ithin 48 hours of arrest, and at
that first appearance to be charged, or told the reason for further detention or released. Section 35(2) likew ise makes detailed
provision for the protection of the interests of detainees, assuming that detention is constitutionally acceptable.
[6] Section 35(1)(f) in its context, makes three things plain. The first is that the Constitution expressly acknow ledges and sanctions
that people may be arrested for allegedly having committed offences, and may for that reason be detained in custody. The
Constitution itself therefore places a limitation on the liberty interest protected by s 12. The second is that notw ithstanding law ful
arrest, the person concerned has a right, but a circumscribed one, to be released from custody subject to reasonable conditions. The
third basic proposition flow s from the second, and really sets the normative pattern for the law of bail. It is that the criterion for
release is w hether the interests of justice permit it. W hat that term means, both in the Constitution and in s 60 of the CPA, is central
to much of this judgment, and w ill be thrashed out later. All that need be said at this stage is that s 35(1)(f) postulates a judicial
evaluation of different factors that make up the criterion of the interests of justice, and that the basic objective traditionally ascribed
to the institution of bail, namely to maximise personal liberty, fits snugly into the normative system of the Bill of Rights.
It will therefore be seen that the theoretical basis for the right to bail in our law is, in the first instance, to be found in the
provisions of s 12 of the Constitution, which guarantees the right to liberty; but that this right is subject to the reasonable
limitation that individuals may be arrested in the public interest. This limitation, in turn, is circumscribed, in that the detained
individual is entitled to be released on bail coupled with reasonable conditions prior to conviction;
Page 31
while this latter right is again limited by the requirements of the interests of justice. What does appear with some clarity,
when the English, Canadian and American approaches to bail are examined in conjunction with the Constitutional Court's
approval of the somewhat harsh provisions of the Act, is that it is by no means a South African legislative peculiarity to
prohibit or limit the grant of bail in respect of certain serious charges.
4.4 Bail and the due process and crime control models
Given the accused's constitutional right to liberty, the provisions of s 35(1)(f) of the Constitution, and Chapter 9 of the Act
with regard to bail, it is axiomatic that the accused possesses a right to apply for bail. The question arises, however,
whether the accused, as a corollary of his right to liberty and his right to apply for bail, has a right to bail. The answer will
greatly depend on the determination of the following considerations:
(a) Is our bail system a 'due process' or 'crime control' model?
(b) Of the accused and the state, w hich bears the onus of proof in a bail application?
As will be seen below, it can be said that our bail system shows traces of both the 'due process' and 'crime control' models,
and the onus of proof has traditionally been placed on the accused in most (but not all) jurisdictions in South Africa. [30]
An application for bail will be judged in accordance with the tenets of the particular model applying in our law. The 'due
process' system entitles the accused to bail unless there is sufficient indication that he will not stand his trial. In a 'crime
control' system the accused will be granted bail only if there are sufficient indications that he will stand trial. It is here that
the onus assumes a decisive role. The position in South Africa seems to have been that the accused was traditionally
entitled to bail if he applied for it and if he showed that the risk of releasing him was acceptable. [31] The entire question of
onus has, of course, been profoundly affected by the Bill of Rights, and also by the wording of ss 60(1)(a) and 60(11) of
the Act. A full discussion appears in Chapter 7.
Packer [32] distinguishes between two basic procedural models, namely the crime control model and the due process
model. Broadly speaking, the crime
Page 32
control model proceeds from the premise that the repression or constraint of criminal behaviour is the primary function of
the criminal process. [33] The emphasis is on the interests or protection of society. The due process model has a different
value system. This value system requires that the criminal process should operate in the interests of preventing official
repression of the subject whose liberty is at stake. The criminal process is virtually required to correct its own potential
abuses [34] and to grant procedural rights to an accused at every possible stage of the process. The crime control model
does not necessarily deny an accused his procedural rights, but puts less emphasis on these rights, especially as regards
pre-trial procedure.
When these models are brought into operation in respect of bail, the principles that divide them become even clearer. In
the crime control model pre-trial liberty is and should be kept to the minimum. Pre-trial liberty should not become the norm.
In the due process model the basic point of departure is that there is a right to pre-trial liberty. A sharp distinction must be
maintained between the status of an accused who is awaiting trial and one whose guilt has been formally pronounced by a
court of law. Packer [35] points out that the crime control model accepts that failure to appear is not the only risk involved in
pre-trial liberty:
The prospect that know n criminals w ill commit further crimes w hile at large aw aiting trial is in itself an adequate reason for not making
pre-trial liberty the norm. The more hardened the criminal, the greater the likelihood that this w ill happen. Burglars w ill commit more
burglaries; narcotics peddlers w ill sell more narcotics; gunmen w ill stage more robberies. The danger to property and to human life
that results from letting know n offenders go free even temporarily is inexcusable because it is so easily avoidable.
The danger of resorting to the crime control model is evident from the following statements by Packer 160:
The supposition is that the screening processes operated by the police and prosecutors are reliable indicators of probable guilt. Once
a man has been arrested and investigated w ithout being found to be probably innocent, or, to put it differently, once a determination
has been made that there is enough evidence of guilt to permit holding him for further action, then all subsequent activity directed
tow ard him is based on the view that he is probably guilty.
Is our bail system based upon a due process model or a crime control model? In the course of this work it will become
evident that our bail system shows traces of both the due process and crime control models. In our system the accused
has a right to apply for bail, but he has no right to pre-trial liberty. Pre-trial release on bail should be carefully balanced
against the just demand of society that the interests of justice should not be prejudiced. But in this context the interests
of justice can include the valid consideration that an accused who will stand his trial should be released on bail because he
then has a better opportunity to prepare his defence. The purpose of any bail system should be to promote and
Page 33
protect the interests of society as well as the interests of the individual. The due process model obviously provides more
scope for release on bail. But much can also be said for the application of the crime control principles in respect of bail. [36]
It may be said that, for all the lofty constitutional principles expressed by various courts since the advent of democracy in
South Africa, and more particularly in relation to the onerous provisions introduced into our bail law in 1995 and 1997, the
Constitutional Court has unambiguously opted for a crime control model. Thus, in S v Dlamini [37] the following somewhat
startling sentiments were expressed: [38]
[55]. . . [P]ublic peace and security are at times endangered by the release of persons charged w ith offences that incite public
outrage. . . . Experience has show n that organised community violence, be it instigated by quasi-political motives or by territorial
battles for control of communities for commercial purposes, does subside w hile ringleaders are in custody. Their arrest and detention
on serious charges does instil confidence in the criminal justice system and does tend to settle disquiet, w hether the arrestees are
w ar-lords or drug-lords. In my view , open and democratic societies based on human dignity, equality and freedom, after w eighing the
factors enumerated in paragraphs (a) to (e) of s 36(1) of the Constitution, w ould find ss 60(4)(e) and (8A) reasonable and justifiable
in the prevailing climate in our country.
[56] That conclusion is based, first, on the inherently temporary nature of aw aiting trial detention w hen w eighed against the
compelling interest in maintaining public peace. In the second place, there is a close relationship and appropriate fit betw een the
temporary w ithholding of liberty and the disruption that release w ould unleash. I do not w ish to be understood as saying anything in
favour of detention w ithout trial. W e are concerned here w ith detention or release in anticipation of a proper trial.
What is particularly disturbing about the quoted passage is that the court appears to have lost sight of the operation of the
presumption of innocence at the pre-trial stage (while, elsewhere in the judgment, it appears to give due recognition to the
presumption): the distinct impression is created that, as the arrest and detention of a suspect on mere allegations may
appease the public, a blind eye may be turned to the possibility that the suspect may, eg, be the wrong person and
therefore innocent. Appeasing the public cannot be logically equated with upholding the interests of justice (or even of
society). Some may indeed think that the purported distinction between 'detention without trial' and 'detention . . . in
anticipation of a proper trial' is, in the context of the rights to liberty and to be presumed innocent, mere sophistry and,
with respect, disingenuous. The approach of the Constitutional Court in the above-quoted passage, evidentially unfounded
and bristling with intent based purely on assumption and speculation, is baffling, and moreover appears to run contrary to
the balanced approach adopted by Langa CJ in S v Mbatha; S v Prinsloo: [39]
[16] [In a discussion paper by the HSRC it w as said]: 'The face of crime is becoming increasingly violent and more serious. If left
unchecked, a protracted increase in violent crime
Page 34
in particular is a threat to social stability.' I could not agree more. . . . There is no doubt that . . . crimes of violence, particularly those
involving firearms, have reached an intolerably high level and that urgent corrective measures are w arranted.
[18] . . . These are real and pressing social concerns and it is imperative that proper attention should be given to finding urgent and effective
solutions. The issue before us, however, is not simply whether there is a pressing social need to combat the crimes of violence . . . but also
whether the instrument to be used in meeting this need is itself fashioned in accordance with specifications permitted by the Constitution.
(Emphasis added.)
Significantly, prior to its amendment in 1995, the Act contained no provisions stating that bail was a right. In this regard
the South African position differed sharply from such due process systems as exist in England [40] and the United States of
America. [41] The practical effect, however, was not much different, and apart from automatic bail allowed in minor cases in
England, the South African, English and American systems operated virtually identically. It is therefore of significance that
the American courts [42] have consistently held that bail is a privilege and not an inalienable right guaranteed by the Eighth
Amendment to the American Constitution. [43] It is submitted that, the provisions of the Bill of Rights and the new wording
of the Act notwithstanding, bail in South Africa is effectively a privilege and not a right.

Before the introduction of a Bill of Rights into the South African constitutional dispensation, an arrestee under s 60(1) of
the Act (as it then read) was entitled to be brought before a lower court within 48 hours of his arrest to enable him to apply
for bail. This process could also be activated by the arrestee's request to be brought before the lower court. As was pointed
out above, however, the accused, once he was brought before court for his bail application, bore the onus of proving on a
balance of probabilities that he would not constitute a bail risk. Thus, as was stated above, the accused had a right to apply
for bail rather than a right to bail in the strict sense of the word.
Page 35
4.6 The interim Constitution

A number of important, precedent-setting judgments have seen the light pursuant to the promulgation of the interim
Constitution in 1993. For that reason it is convenient to deal here with this transitional instrument. The interim Constitution
introduced the provisions of s 25(2)(d), in terms of which every arrested person had the right to be released from
detention, with or without bail, unless the interests of justice required otherwise. The introduction of this provision
prompted a change in attitude on the part of some courts with regard to the question of onus, which, of course, profoundly
affects the whole question of a right to bail. Thus, in Magano v District Magistrate, Johannesburg (1) [44] the onus was held
to be on the state to show beyond a reasonable doubt why the accused should not be released on bail. This approach was
also adopted in the minority judgment in Ellish v Prokureur-Generaal, WPA. [45] However, it was held by the majority in
Ellish and by the court in Prokureur-Generaal van die WPA v Van Heerden [46] that no onus existed in a bail hearing. In his
discussion of the Ellish judgment, Leveson J in S v Mbele [47] said the following:
Reverting how ever to the other factors in the judgment, I have already made mention of the fact that w hen bail proceedings become
fully opposed they resemble more closely a trial hearing. There are averments to be proved or disproved, as the case may be, and
w hen there is doubt there is no reason w hy the matter should not be resolved by resorting to the expedient of onus. . . . There has
to be determination of an issue as in any other trial. I am not persuaded that the factors considered by the learned Judge in the Ellish
case carry any w eight, first, because there is nothing in s 25(2)(d) w hich invites their application, and second, because there w as no
reason to overthrow at least sixty years of decisions in w hich it had been held that the onus lay on the accused. The correctness of
the view of the majority of the Court is thus open to doubt.
In the light of this latter dictum, and its adoption in many other jurisdictions, the statement by Chaskalson et al [48] to the
effect that 'the arrested person does possess the right to be released on bail' may no longer be accurate in unqualified
form. This does not mean that the authors' stance does not deserve support: [49]
In my view there is no reason w hy s 25(2)(d) should not be interpreted purposively and in favour of the individual arrested accused
w ho applies for release on bail pending his trial or further investigation. As w as stated by Southw ood J in Ellish en Andere v Prokureur-
Generaal, WPA, there is no reason w hy the onus should not rest on the state. That approach w ill not bring about a situation w here
applicants for bail w ho should remain in custody in order to protect society w ould be released on bail. The fact that some individual
arrested persons have to be kept in custody in order to protect the community against the further commission of
Page 36
offences should not bring about a situation w here the vast majority of arrested persons should not have the full benefit of s 25(2)(d)
and the right therein contained to be released from detention w ith bail unless the interests of justice require otherw ise.
The issue of the onus is discussed in Chapter 7.
4.7 Section 60(1)(a) and the Bill of Rights

In terms of s 25(2)(d) of the interim Constitution every person arrested for allegedly committing an offence had the right
to be released from detention w ith or w ithout bail, unless the interests of justice require otherw ise.
The section failed to define the concept of 'interests of justice', leaving the determination of its meaning to the courts. In S
v De Kock [50] it was held that the concept embraced no more than the usual considerations in all bail applications. The
advent of s 60(1)(a) of the Act in 1995, however, introduced the concept into the Act itself. Thus, the sub-section provided
that
[a]n accused w ho is in custody in respect of an offence shall . . . be entitled to be released on bail at any stage preceding his or her
conviction in respect of such offence, unless the court finds that it is in the interests of justice that he or she be detained in custody.
The concept of the 'interests of justice' was further refined in s 60(4) of the Act, which provides as follows:
The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice w here one or more of the
follow ing grounds are established:
(a) w here there is the likelihood that the accused, if he or she w ere released on bail, w ill endanger the safety of the public or any
particular person or w ill commit a Schedule 1 offence; or
(b) w here there is the likelihood that the accused, if he or she w ere released on bail, w ill attempt to evade his or her trial; or
(c) w here there is the likelihood that the accused, if he or she w ere released on bail, w ill attempt to influence or intimidate
w itnesses, or to conceal or destroy evidence; or
(d) w here there is the likelihood that the accused, if he or she w ere released on bail, w ill undermine or jeopardise the objectives or
the proper functioning of the criminal justice system, including the bail system;
(e) w here in exceptional circumstances there is the likelihood that the release of the accused w ill disturb the public order or
undermine the public peace or security. . . .
It will thus be seen that an apparent harmony existed between the wording of the interim Constitution, which entrenched
the right to be released unless 'the interests of justice' required an accused person's detention, and the amended s
60(1)(a) of the Act, which stipulated that an accused person was entitled to be released on bail unless the court found it to
be in the 'interests of justice' that he be detained. Introduced in 1996, s 35(1)(f) of the Constitution, however,
Page 37
somewhat upset this state of affairs: the section provides that every person who is arrested for the alleged commission of
an offence has the right
to be released from detention if the interests of justice permit, subject to reasonable conditions. (Emphasis added.)
A definite tension is discernable between the wording, on the one hand, of s 25(2)(d) of the interim Constitution and s
60(1)(a) of the Act, and on the other hand, s 35(1)(f) of the Constitution: the two earlier provisions appear to have
required the release of persons who had been arrested for the alleged commission of an offence unless their detention was
required by the 'interests of justice'; whereas the later provision permits the release of such a person only if the 'interests
of justice' allow for such release. Our courts have not, however, generally differentiated between the wording of these
apparently divergent provisions, and thus the substance of the right has remained intact. [51] In the Bill of Rights the right
to be released is subjected to the questions of whether the interests of justice permit an accused person's release and
what the appropriate bail conditions would be to meet the exigencies of a particular release. [52] Section 60(1)(a) has now
been amended to bring it in line with s 35(1)(f) of the Constitution. [53]
4.8 Cash bail and the poor: a hollow right?

It must be observed that, even if it could be said that the accused has a right to bail, that right would only really be available
to the privileged. The iniquity of the bail system is that it expects a prima facie innocent person temporarily to forfeit money
in order to remain free. [54] The accused's alternative is to forfeit his freedom and retain his money, often needed to
maintain his family—an unjust situation where his guilt has not yet been determined. The indigent are therefore expected to
forfeit their freedom, regardless of the presumption of innocence. In this sense bail becomes a privilege that is not available
to the poor. [55] It may accordingly be asked why the law has such a preoccupation with money as the sole guarantee of the
accused's commitment to stand his trial. [56] The system of cash bail commonly in use in South Africa is, simply put,
inherently discriminating. In the United States of America the Federal Bail
Page 38
Reform Act provides a statutory presumption against cash bail, while in England a government commission's criticism of the
cash bail system resulted in the system [57] falling into disuse. If our courts were to resort more frequently to alternatives
to cash bail, bail would be truly extended to all who are presumed innocent, including those who may be unfortunate
enough to be impecunious. For the law to operate in a fair and equal manner, alternatives to bail should therefore be
increasingly considered and applied. [58]
The problem is compounded by the setting of unaffordable amounts of bail by many courts. Surprisingly, the Constitution
is silent on the fundamental requirement that bail, once granted, should be set in a reasonable amount. [59] In addition,
whereas the previous Act stipulated that the amount of bail set by a court should be reasonable, [60] no such requirement
has been re-enacted in the current Act. However, these omissions could not possibly indicate a condonation of excessive
bail, for that—more so even than the fixation on cash bail—would render any right to bail nugatory. [61] Clearly, considering
the socio-economic realities of this country, courts should more frequently resort to alternatives to cash bail. While it must
be conceded that a balance needs to be struck between the endemic crime, and especially violent crime, experienced in our
society, it should be accepted that no reasonable court would release an accused person on his own recognisance where the
charge is one of serious violence—in point of fact, to do so is all but prohibited by the provisions of s 60(11) of the Act. The
viable alternatives to cash bail are discussed elsewhere, [62] as is the prohibition against excessive bail. [63]
A legislative step in the right direction has been the introduction into the Act of a new provision, which, in appropriate
circumstances, empowers a Head of Prison to apply to a court for the release on warning of an awaiting-trial prisoner who
appears to be unable to afford a modest amount of bail. [64] There are, however, certain restrictions as to the nature of the
charges upon which the prisoner is being held. In addition, the procedure by which the prisoner's release may be
established is involved and cumbersome. [65]
A more 'user-friendly' provision is the new s 60(2B)(b)(i) of the Act, which provides that courts may order the release of
impecunious awaiting-trial prisoners in certain circumstances, clearly in the exercise of a discretion, and not specifically
excluding serious cases. In S v Jacobs [66] this aspect was comprehensively discussed and elucidated:
Page 39
[12] . . . Courts can now in any event take judicial notice of the fact that the country's prisons are grossly overcrow ded, particularly
the aw aiting-trial sections, and that a large number of the aw aiting-trial prisoners have been granted bail and cannot afford to pay
the bail, w hich is sometimes a small amount. No person w ho has been granted bail should still be in custody, w hether in overcrow ded
conditions or not. The granting of bail recognises an aw aiting-trial accused's right to liberty w hile he is presumed innocent.
[13] The existing principles regarding affordability of bail in relation to an accused's right to liberty, have, in my view , merely been
affirmed by the enactment of s 60(2B) of the Act. The subsection serves as a reminder to judicial officers to consider properly the
amount of bail to be set, or other conditions of release w hich w ill be just as effective for the administration of justice as payment of
money. It seems that this reminder is necessary given the large number of persons w ho are still in custody aw aiting trial because
they cannot afford the bail w hich they have been granted.
[14] The problem of overcrow ding, and, in particular, a person's inability to pay bail w as expressly addressed by the introduction of s
63A of the Act. This section provides that a head of prison may apply to court for the release on w arning, or amendment of bail
conditions of an accused if he/she 'is satisfied that the prison population of a particular prison is reaching such proportions that it
constitutes a material and imminent threat to the human dignity, physical health or safety of an accused'. The section is restricted to
accused persons w ho have been granted bail and are unable to pay, and w ho are charged w ith offences w hich fall into a certain
category, namely those referred to in Schedule 7 of the Act, or offences for w hich a police official may grant bail.
[15] The procedure set out in s 63A is quite involved. It has to be initiated by the head of the prison, w ho has to depose to an
affidavit regarding the population of the prison, and the Director of Public Prosecutions has to issue a certificate to the effect that the
prosecuting authority does not oppose the application. Even then, the court has a discretion to grant the application, in that it 'may'
order the release of the accused. I should mention here that it is unlikely that the legislature intended—w ith s 60(2B)(b)(i) of the Act—
a blanket release, w ithout payment of a sum of money, for offences more serious than those covered by s 63A, w hen, in terms of that
section, the court still has a discretion.
[16] The intention of the legislature in enacting s 63A of the Act w as expressly to address the overcrow ding of prisons w ith the
concomitant violation of a person's dignity and threat to his health and safety. I see no reason w hy courts should not have regard to
the purpose of that section w hen deciding bail applications w here the offence falls outside the ambit of that section. The ongoing
violation of a person's dignity and threat to his health and safety are vitally important factors to take into consideration, especially
w hen he has been granted bail and is in custody only because he cannot afford to pay the bail.
[17] The end result, in my view , is that each case must be decided on its ow n circumstances.
[18] In the present case, I am of the view that the magistrate over-emphasised the seriousness of the offence w ith w hich the
appellant w as charged, and did not have regard to other factors. He also appeared to emphasise that it could not have been the
intention of the legislature that persons must automatically be released if they could not afford to pay a sum of money; and in so
doing did not properly apply his mind to the particular circumstances of the case before him—and consider the imposition of conditions
w hich did not include payment of a sum of money. He therefore did not properly exercise his discretion, and this court w as able to
revisit the circumstances . . .
Page 40
[20] Taking all these factors into account, as well as the violation of the appellant's dignity and the threat to his health and safety as an
awaiting-trial prisoner in overcrowded conditions, I was of the view that conditions could be imposed which did not include payment of a sum
of money, and ordered accordingly. (Emphasis added.)
Undoubtedly to be welcomed, the section is nevertheless puzzling, as it seems to offer no more than release on warning
coupled with appropriate conditions, excluding payment of cash bail, in terms of s 72 of the Act.
[1] For a discussion of the presumption of innocence see C h 3.
[2] The universal standard of proof in criminal cases. See Lewis et al An Introduction to the Courts and Judicial Process (1978) 145.
[3] See C h 3.
[4] Wice Freedom for Sale (1974) 6. See also Lewis et al 146; Packer The Limits of the Criminal Sanction (1968) 212.
[5] See Benjamin (above): '[I]n a criminal trial there is a presumption of innocence in favour of the accused, which must be rebutted.'
[6] Nel Borgtoghandleiding (1987) 33.
[7] Nel 32.
[8] By virtue of s 8 of the Bail Act 1978. A presumption in favour of bail is created by s 9 of the Bail Act.
[9] See s 8(2)(a) of the Bail Act 1978.
[10] Nel 32.
[11] See the Bail Act 1976, Schedule 1 Part II.
[12] Bail Act 1976, Schedule 1 Part I para 9A(1), (2).
[13] Magistrate's C ourt Act 1980, s 41.
[14] Badger [1843] 4 QB 468 472.
[15] Linford v Fitzroy [1849] 13 QB 240.
[16] See Padfield 1993 Cr LR 510; Hogg Constitutional Law of Canada (1992) para 48.6ff.
[17] R v Bray (1983) 40 OR (2d) 766 (C A) 769.
[18] R v Pearson (1992) 77 C C C (3d) 124 (SC C ).
[19] R v Morales (1992) 77 C C C (3d) 91 (SC C ).
[20] See also Stratas The Charter of Rights in Litigation (1993) 32-1; and cf Beaudoin The Canadian Charter of Rights and Freedoms (1989) 431ff.
[21] LaFave & Israel Criminal Procedure 2 ed (1992) 608.
[22] 342 US 524 (1952).
[23] 342 US 1 (1951).
[24] 481 US 739 (1987).
[25] See LaFave & Israel 609.
[26] The lower House of the United States legislature.
[27] See also Hunt v Roth 648 F 2d 1148 (1981); Bell v Wolfish 441 US 520 (1979).
[28] Steytler (above) 132 and cases cited in nn 3 and 4.
[29] 1999 (2) SAC R 51 (C C ), 1999 (4) SA 623 (C C ).
[30] The approach of our courts has been to view the bail application as just another application in which the applicant had to show prima facie (and,
in some cases, on a balance of probabilities) that he was entitled to relief. The question of fundamental rights transcending the procedural formalities of
the civil law has never been fully considered in its proper perspective, namely that bail is a procedural human right that could be infringed or curtailed
only in exceptional circumstances on good cause shown. But see R v Mtatsala 1948 (2) SA 585 (E) 592 where the onus was placed on the state in
respect of some matters.
[31] In S v Mhlawli and Others1963 (3) SA 795 (C ) and S v Essack 1965 (2) SA 161 (D), for instance, it was stated that the court should lean in
favour of granting bail, and that bail will generally be granted unless risk factors detract from the advisability of releasing the accused. Harcourt (ed)
Swift's Law of Criminal Procedure (1969) 171 suggests that bail should be refused 'only after the greatest circumspection for the great weight of our
judicial system is in favour of liberty of the subject and it is repugnant to our law that, unless it is essential to the interests of justice, a man, still in law
innocent, should be detained by the police, no matter howsoever long that detention may be'.
[32] Packer 149-173.
[33] Packer 158.
[34] Packer 167.
[35] Packer 214.
[36] Packer 212.
[37] Above.
[38] In paras [55] and [56].
[39] 1996 (1) SAC R 371 (C C ).
[40] Howard League for Penal Reform Granting Bail in Magistrates' Courts: Proposals for Reform (1972) 405. A right to bail has been written into the
C riminal Justice Act 1967 and more recently into the Bail Act 1976. Notwithstanding such right, however, the accused may still have to satisfy the court
that he will abide by the bail conditions—see Bradley & Senior Bail in Magistrates' Courts (1977) 7-11; C riminal Justice Act 1967, s 18.
[41] In the United States of America the Eighth Amendment to the American C onstitution carries a prohibition of excessive bail. Bail is generally
considered a constitutional right, reliance being placed on the Fifth, Eighth and Fourteenth Amendments—see Lewis et al 145.
[42] The Federal courts have not been upset by the Supreme C ourt in this regard. See Dow Discretionary Justice (1981) 60. See also, however, the
convincing dissenting opinion of Black J in Carlson v Landon 342 US 524 and the persuasive reasoning of Foote 1965 UPaLR 970.
[43] Dow 60; Stack v Boyle 342 US 1 (1952) 4: 'Unless this right to bail before trial is preserved, the presumption of innocence, secured only after
centuries of struggle, would lose its meaning' appears in stark contrast.
[44] 1994 (4) SA 169 (W).
[45] 1994 (2) SAC R 579 (W).
[46] 1994 (2) SAC R 469 (W).
[47] 1996 (1) SAC R 212 (W) 217.
[48] Constitutional Law of South Africa (1996) 27-16.
[49] C haskalson et al 27-17.
[50] 1995 (1) SAC R 299 (T).
[51] See, generally, Schwikkard The Presumption of Innocence (1999) 76-7. C ompare Magano v District Magistrate, Johannesburg (1) 1994 (2)
SAC R 304 (W) 306 with S v Mbele and Another 1996 (1) SAC R 212 (W) 216; S v Dlamini 1999 (2) SAC R 51 (C C ) para [38]. See also S v Letaoana
[1998] 1 All SA 107 (W) 115b.
[52] Steytler 131.
[53] See Appendix A.
[54] Quinney The Social Reality of Crime (1970) 143.
[55] See Foote 1954 UPaLR 1021 1073; Goldkamp in Atkins & Pogrebin (eds) The Invisible Justice System: Discretion and the Law (1982) 117.
Ironically, those of means will not only be able to pay the bail amount with greater ease, but will probably also more easily convince the court that they
are stable citizens worthy of release (which rather conceals the likelihood that they will find it easier to arrange undetected abscondment). They will
also be able to afford counsel of standing, whose reputation and integrity inevitably reflect on the accused.
[56] The Act does make provision for sureties to undertake to indemnify the state if the accused does not stand trial, but again the suretyship is
based on financial means.
[57] Great Britain Home Office Working Party on Bail Procedures in the Magistrates' Courts (1974) 32.
[58] Alternatives such as own recognisance and releasing the accused into the custody of a responsible person, and the American experiments with a
point-scoring system and pre-trial parole are in urgent need of consideration by the legislature. See for instance Lewis et al 146-7. See also Nel 143.
[59] C ontrast the Eighth Amendment to the United States C onstitution.
[60] Act 55 of 1956, s 96.
[61] C f R v Conradie 1907 TS 455.
[62] C h 13.
[63] Para 10.3.
[64] Section 63A of the Act.
[65] See C h 16, where miscellaneous extraordinary proceedings are discussed.
[66] 2011 (1) SAC R 490 (EC P).
Page 41
5
Bail granted extra-curially
5.1 Limitation as to offences

In terms of s 59 of the Act [1] an accused person may, before his first appearance in court, be admitted to bail by any police
official of or above the rank of non-commissioned officer, on the simple condition that he deposits at a police station the
sum of money determined by the police official. [2] However, the power of police officials to grant bail is limited by s 59(1)(a)
to accused persons who are in custody for offences other than those referred to in Part II or III of Schedule 2 to the Act.
The result is that s 59 is applicable only to crimes that are, relatively speaking, fairly trivial. The suggestion made by Nel [3]
that the police discretion is too narrow and ought to be broadened by the amendment of Schedule 2 to the Act, is
supported and its implementation well overdue. However, this unnecessary restriction of police powers has now been
balanced by the introduction of s 59A of the Act, [4] which provides for the attorney-general or his representative to
authorise bail in respect of those offences listed in Schedule 7 to the Act. [5] Thus extra-curial release on bail for all but the
most serious offences has now been made possible.
A further limitation of police bail is that only cash amounts are receivable in terms of s 59, with the result that guarantees
and sureties may not be accepted. The attorney-general, on the other hand, may authorise the release of the
Page 42
accused upon payment of cash bail or the furnishing of a guarantee. [6] It must also be noted that s 59 confines the power
to grant police bail to accused persons who have not yet appeared in court. Once the accused has made his first court
appearance the provisions of s 60 come into operation, and s 59 can no longer be invoked. Although less explicit in this
regard, s 59A also appears to contemplate the grant of bail prior to the accused's first court appearance. [7]
Finally, it is clear from s 59 that a police official does not have the power to determine special conditions relating to the
accused's release on bail. However, a court may add conditions to the original police bail which was fixed before the
accused's first court appearance. [8] By contrast, the attorney-general is empowered [9] to impose reasonable discretionary
conditions, which may be endorsed, amended or supplemented by the court. [10]
5.2 Official having jurisdiction

Section 59(1)(a) of the Act confers jurisdiction to grant police bail by stipulating that any 'police official' of or above the rank
of non-commissioned officer may grant bail before the accused's first court appearance. This means that of the current
police ranks only constables are excluded from such authority. However, in practice a request for police bail is often directed
at a constable, who conveys the request to the sergeant or officer on duty, who in turn formally deals with the application.
'Police official' is defined in s 1(1) of the Act as any member of the South African Police Service.
Section 59A(1) of the Act confers jurisdiction to grant bail on any attorney-general or prosecutor authorised thereto in
writing by an attorney-general.
5.3 Procedure and formalities

The Act prescribes no procedure for the bail process which takes place prior to the accused's first court appearance. [11] As
is suggested below, the procedure envisaged by both s 59 and s 59A is informal and of an administrative nature, [12] but
with a quasi-judicial element. In contrast to ss 50 and 60 of the Act, which govern or refer to bail proceedings in court, ss
59 and 59A do not refer to any 'application' which has to be 'made' by the accused; the sections simply permit the
accused's release on bail in certain circumstances. It is submitted that the accused may informally ask for bail and that an
authorised police official or
Page 43
prosecutor may grant or raise the matter of bail mero motu, provided he has consulted with the police official investigating
the case. [13] It is submitted that the investigating officer's attitude may well be decisive. As appears from the discussion of
legal representation elsewhere [14] the accused may at such bail proceedings be assisted [15] and advised by his legal
representative, [16] but may not insist on actual legal representation. [17] However, the police official or prosecutor
concerned may permit such representation; in practice the whole issue of police bail is often finalised between legal
representative and police official without the accused's participation, and the proceedings introduced by s 59A of the Act are
conducted no differently.
In terms of the Act the police official need not keep a record of proceedings [18] and need not furnish reasons for his
decision. [19] Section 59A(6), however, requires that the attorney-general or authorised prosecutor should keep a record of
bail proceedings.
The police official who grants bail is enjoined to complete and hand to the accused a recognisance reflecting receipt of the
amount of bail fixed, the offence in respect of which bail has been granted, and the date, time and place of the accused's
trial. [20] The police official must forthwith forward a duplicate of the recognisance to the clerk of the court having
jurisdiction. [21] As the accused's bail determined by the attorney-general or prosecutor in terms of s 59A is to be paid at
the place of his detention, [22] no similar duty is imposed on these latter officials.
Page 44
5.4 Discretion
The bail procedure envisaged by ss 59 and 59A is informal and amounts to no more than administrative proceedings with a
quasi-judicial flavour. It is nevertheless submitted that a police official or prosecutor entrusted with the task of considering
an accused's request for bail is expected to apply his mind to the request and to exercise his discretion, but not to exercise
his discretion arbitrarily or maliciously. [23] In Shaw v Collins [24] it was held that a police official's failure to exercise his
discretion, or the improper exercise thereof, was an irregularity. It was suggested that an action for damages will lie in
circumstances where bail is wrongly refused and the refusal is wilful and malicious, as where a police official refuses to
exercise his discretion.
It is submitted that the constant unavailability of a police official or prosecutor empowered to grant bail (or the
investigating officer with whom such official must consult) is similarly irregular, and may constitute a failure or refusal by
such official to exercise the discretion conferred by s 59 or s 59A. In MacDonald v Kumalo [25] the police officer empowered
to grant bail went off duty at 17h00 and the bail register was locked up. This state of affairs prompted Graham JP to remark
as follows: [26] 'This practice is certain to lead to abuse, and many presumably innocent men [27] may be compelled to spend
the night in a police cell on charges of petty offences, who undoubtedly would have been released if the officer had been
present.' The tendency at some police stations (or in some investigative units) to mete out punishment to the accused prior
to (or even in lieu of) the trial by refusing bail in deserving cases, is a gross breach of discretion and of fundamental rights
and ought to be actively discouraged.
Similarly, the not uncommon practice of holding out the promise of bail (or affordable bail) in exchange for a confession or
a plea of guilty is wholly improper and needs to be eradicated. [28]
It is submitted that the discretion to allow bail extra-curially should be exercised in every instance where the police official
or prosecutor has jurisdiction having regard to his rank and/or the offence, as the case may be—provided that the
investigating officer has been consulted [29] and that the accused has a fixed address and no apparent reason to
abscond. [30]
Page 45
5.5 Police bail: no discretionary conditions

In s 59(1)(a) of the Act a police official having jurisdiction may in prescribed circumstances release the accused on bail 'if the
accused deposits at a police station the sum of money determined by such police official'. This condition is absolute: the Act
does not permit the release of the accused unless the requisite sum of money has been paid. [31] No provision is made for
guarantees in lieu of money, and it may be accepted that police bail can be posted in cash only. This absolute bail condition
is discussed more fully below. [32] Police bail may be granted only within the four corners of s 59 of the Act. The section
requires a sum of money to be deposited as a precondition for the accused's release, [33] but permits no additional
conditions of bail. The police official having jurisdiction must therefore either grant or refuse bail; such bail may not be
granted subject to conditions imposed by the police official.
The attorney-general or authorised prosecutor may, however, impose reasonable discretionary conditions. [34] Although
the Act is silent as to the permissible nature and content of such conditions, it is submitted that the legislature in all
probability envisaged no more than the discretionary conditions provided for in s 62.

It is a fundamental principle of common law that an accused person is entitled to legal representation. [35] This right is
further entrenched in South African criminal procedure by the provisions of s 73 of the Act and s 35(2) of the Constitution.
Section 73 provides that the accused shall be entitled to the assistance of his legal adviser as from the time of his arrest,
and s 35(2)(b) of the Constitution confers this right on 'everyone who is detained'. (It is somewhat surprising that s 35(1)
of the Constitution, which prescribes the rights of arrested persons, should be silent on so fundamental a right as the right
to access to a legal adviser upon arrest.) The accused's right entails access to counsel of his choice for the purpose of
obtaining legal advice. [36]
Page 46
In view of the unequivocal wording of s 73 of the Act and s 35(2) of the Constitution, the accused must be allowed to
consult a legal adviser as soon after his arrest as is practicable. [37] This means that by the time the accused has been
formally registered at the police station where he is to be lodged, he should be in a position to consult with his counsel and
to be advised on his further rights [38] and on how to handle his predicament in terms of the law. Such advice may be
directed at requesting bail from a police official at the police station where he is held or from the attorney-general or an
authorised prosecutor. It appears from the wording of s 73(1) of the Act that the accused will also be able to rely on the
assistance of his counsel during the bail process at the police station or before the attorney-general or prosecutor. It would
seem that the bail request should be made by the accused himself, and that the role of his legal adviser may only be to
assist him, for in terms of s 73(2) legal representation may be claimed as a right in criminal proceedings only (which police
bail proceedings and proceedings in terms of s 59A of the Act manifestly are not).
It is submitted that police bail proceedings held in terms of s 59 of the Act and proceedings in terms of s 59A of the Act
are in the nature of administrative proceedings where legal representation may be allowed in the discretion of the delegated
official. [39] In practice, however, bail is more often than not arranged informally between the accused's legal representative
and the relevant police official, an informality which extends to s 59A proceedings. Where access to a legal adviser is
refused, or the assistance of his legal adviser is denied the accused, an administrative irregularity will have been
committed. [40]
5.7 Duration of extra-curial bail

As was noted above, [41] a police official or authorised prosecutor may grant bail only before the accused's first court
appearance. Once the accused has appeared in court, his request for bail may be considered only by such court. [42]
However, where a police official has granted bail under s 59 of the Act, such bail shall remain in force after the accused's
appearance in court in the same manner as if
Page 47
the court itself has granted bail under s 60 of the Act. [43] This implies that the provisions regarding cancellation of bail [44]
will become applicable, while s 59(2) of the Act stipulates that a court may simply add conditions listed in s 62 to the bail
granted by the police.
An accused person released on bail by the attorney-general or an authorised prosecutor shall remain on bail until his first
court appearance. [45] The court may then extend his bail [46] or consider the question of bail anew. [47]
[1] Section 59(1)(a) reads as follows:
'An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his first
appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in
consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such
police official.'
[2] See also Mvu v Minister of Safety and Security 2009 (2) SAC R 291 (GSJ).
[3] Nel Borgtoghandleiding (1987) 7.
[4] By Act 85 of 1997, which came into operation in 1998. Section 59A(1) reads as follows:
'An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of the offences referred to in
Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.'
[5] Schedule 7 lists offences generally more serious than those contained in Schedule 2, but less serious than Schedule 1 offences. Schedule 7,
which was introduced by Act 85 of 1997, reflected an incongruity between the English and Afrikaans texts: the latter text extended the authority of an
attorney-general or authorised prosecutor to grant bail to include crimes relating to the dealing in or smuggling of firearms, explosives and
ammunition, and the possession of automatic or semi-automatic firearms, explosives or weaponry. The discrepancy has since been corrected, in that
such extended jurisdiction conferred by the Afrikaans text has been removed by s 10 of Act 34 of 1998. This latter Act has also amended the value of
stolen articles to an amount which 'exceeds R200,00 but does not exceed R20 000,00'—thus removing a lacuna created by the shortfall in the
jurisdiction of police officers in this regard.
[6] Section 59A(3)(a) of the Act.
[7] Section 59A(4) of the Act.
[8] See ss 59 and 62 of the Act.
[9] By s 59A(3)(b) and (c) of the Act.
[10] See s 59A(5)(a) of the Act.
[11] Thus, the police official concerned need not observe rules of procedure—Evans v Public Service Commission 1920 TPD 170 175; Dabner v SAR
and H 1920 AD 583 598.
[12] See s 59(1)(a) of the Act. It is submitted that the requirement of consultation, introduced into the section in 1995, is a sensible measure and a
definite improvement.
[13] See ss 59(1)(a) and 59A(1) of the Act.
[14] Para 5.6.
[15] C f Harcourt (ed) Swift's Law of Criminal Procedure (1969) 171: 'It is also fundamental in our law that where a person is taken to a police station
. . . he should be granted every possible facility and assistance to communicate with his friends and advisers.'
[16] Section 73(1) of the Act. See also Bell v Van Rensburg 1971 (3) SA 693 (C ) 719. C f s 35(2)(b) of the C onstitution.
[17] Baxter Administrative Law (1984) 251.
[18] Bell v Van Rensburg (above) 722. Nel's suggestion that police bail proceedings would be improved if a duty to keep a record were to be
imposed on the bail official is supported—see Nel 8-9. C f s 64 of the Act, which deals with a court's duty to keep a record of bail proceedings conducted
before it.
[19] Baxter 226, 253. It may well be that the accused would be entitled to the police official's reasons for refusing bail by virtue of the provisions of
s 33(2) of the C onstitution, which states that '[e]veryone whose rights have been adversely affected by administrative action has the right to be given
written reasons'. See also Nel 6.
[20] Section 59(1)(b) of the Act, which reads as follows:
'The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognisance
on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the
place, date and time of the trial of the accused are entered.'
[21] Section 59(1)(c) of the Act, which reads as follows:
'The said police official shall forthwith forward a duplicate original of such recognisance to the clerk of the court which has jurisdiction.'
[22] See s 59A(3)(a) of the Act.
[23] Watsham v Hudson 6 HC G 125; Nel 6.
[24] (1883) 2 SC 389.
[25] 1927 EDL 293. The criticism thus expressed will apply a fortiori in the light of the sentiments expressed with regard to bail as a matter of
urgency in Twayie v Minister van Justisie 1986 (2) SA 101 (O).
[26] At 307-8.
[27] And, one supposes, women.
[28] See S v Joone 1973 (1) SA 841 (C ).
[29] See ss 59(1)(a) and 59A(1) of the Act.
[30] C f Nel 7.
[31] See also s 58 of the Act.
[32] C h 11.
[33] Section 59(1)(a) of the Act.
[34] Section 59A(3)(b) and (c) of the Act.
[35] See, for example, Voet Commentarius ad Pandectas (1698) 3.3.14-15; Van der Linden Judicieele Practijcq (1829) 4.5.6; Van Leeuwen Het
Roomsch Hollandsch Recht (1780) 4.4.6; Merula Manier van Procederen (1781) 4.36.1.4-6.
[36] Brink v Commissioner of Police 1960 (3) SA 65 (T); S v Nel 1974 (2) SA 445 (NC ).
[37] There can be no doubt that, whereas the sections are clear and the accused's rights in terms of them must be interpreted in favour of liberty, a
court will not entertain a plea for a strictly literal interpretation which would lead to the nullity of all proceedings following upon a refusal by the police
or prosecutor to allow the accused access to a legal adviser from the very moment of his arrest. See, however, S v Melani and Others 1996 (1) SAC R
335 (E); S v Marx and Another 1996 (2) SAC R 140 (W); S v Agnew 1996 (2) SAC R 535 (C ); S v Gasa and Others1998 (1) SAC R 446 (D); S v Soci 1998
(2) SAC R 275 (E); S v Monyane 2001(1) SAC R 115 (T).
[38] Such as: the right to apply for bail, and the advisability of doing so; the rights of an awaiting trial prisoner; the right to remain silent during
questioning; the advisability of making a statement, or of there and then revealing particulars of his defence, for instance that he has an alibi—and
even the contact details of alibi witnesses; the nature and content of plea on first court appearance.
[39] Harcourt (ed) Swift's Law of Criminal Procedure (1969) 171.
[40] See Brink v Commissioner of Police (above). C f Watsham v Hudson (above); Shaw v Collins (1883) 2 SC 389.
[41] Para 5.1; s 59(1)(a) of the Act.
[43] Section 59(2) of the Act, which reads as follows:
'Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions
of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first
appearance.'
[44] See ss 66-68A of the Act.
[46] Section 59A(5)(a) of the Act.
[47] Section 59A(5)(b) of the Act.
Page 48
6
The bail hearing
6.1 Initiating the bail hearing

One would expect the matter of bail to be raised by the accused in pursuit of the assertion and protection of his right to
liberty. This, indeed, is the normal experience in our courts. It nevertheless occurs on a fairly frequent basis that the
prosecutor mero motu remarks to the court—more often than not during postponement proceedings—that the state has
no objection to bail being granted, thus raising the matter and placing it squarely in the court's hands. The Act is silent on
the question as to whose right or duty it is to initiate the bail hearing. However, in s 60(1)(c) of the Act provides that, 'if
the question of the possible release of the accused on bail is not raised by the accused or the prosecutor, the court shall
ascertain from the accused whether he or she wishes that question to be considered by the court'. [1] It is apparent,
therefore, that the court is expected to play an active part in initiating the bail hearing. In this regard, the following was said
in Prokureur-Generaal, Vrystaat v Ramokhosi: [2]
It should therefore, in my view , be determined in all applications for bail w hat the effect of release w ould be on the interests of
justice. It cannot simply be imagined or presumed. The presiding officer also cannot simply sit w ith his arms folded if neither party
places any information in this regard before him. In determining the interests of justice a number of duties rest on the presiding
officer, w hich amounts to his or her role differing fundamentally from that of a presiding officer in ordinary applications and trials. The
presiding officer in a bail application is not merely a disinterested referee betw een the parties. On the contrary, he or she has a duty,
w here necessary, properly to investigate the matter. . . . Thus, for instance, as already mentioned, the court should raise the issue of
bail mero motu w here the parties are not before the court specifically in connection w ith a bail application and the accused and/or
prosecutor fail to do so (sec 60(1)(c)). [3] (My translation)
Page 49
6.2 Court having jurisdiction

In terms of s 60(1)(a) of the Act, an accused 'who is in custody in respect of an offence' shall be entitled to be released on
bail by 'the court'. This provision is somewhat less clear than s 60(1) as it read before the 1995 amendment, and which
provided that 'an accused who is in custody in respect of any offence may at his first appearance in a lower court or at any
stage after such appearance, apply to such court or, if the proceedings against the accused are pending in a superior court,
to that court, to be released on bail . . .'. This lack of express provision notwithstanding, however, it is submitted that 'the
court' referred to in s 60(1)(a) will of necessity be the court (and, moreover, usually a lower court) in which the accused
makes his first appearance or, subsequently, the trial court (which may be a lower court or a superior court).
6.2.1 T ransfer of accused for trial or sentencing
Subject to the curtailment of the accused's right to be brought to court outside ordinary court hours, [4] the court (usually
the district court) referring the accused to another court (usually the regional court or High Court) for trial or sentencing will
retain jurisdiction in respect of bail until the accused appears in such other court for the first time. [5] The savings clause in
s 60(1)(b), referring as it does to the provisions of s 50(6)(b), is somewhat puzzling, as the latter section simply reads that
'[a]n arrested person . . . is not entitled to be brought to court outside ordinary court hours'. If the intention was merely to
record that the accused, during the process of transfer to another court, is not entitled to be brought before the court
which meanwhile retains jurisdiction, such recordal would have been superfluous as s 50(6)(b) in any event applies to all
arrested persons contemplated in s 50(6)(a)(i). It should be noted, however, that those arrested persons 'not entitled to
be brought to court outside ordinary court hours' are those contemplated in s 50(6)(a)(i); and that the latter sub-section
relates in terms to 'a person contemplated in sub-section (1)(a)'. By a somewhat tortuous route one therefore arrives at
the conclusion that the savings clause in s 60(1)(b) is applicable to persons referred to in s 50(1)(a)—that is, arrested
persons in respect of whom the 48-hour period referred to in that sub-section expires on a day 'which is not a court day or
on any court day after four o'clock in the afternoon'. It is such a person who is not entitled to be brought to court outside
ordinary court hours.
Difficulties of interpretation have arisen as a result of the amendment of s 50(6), particularly when it is read in conjunction
with s 60(1)(b) of the Act, which provides that
the court [usually a magistrate's court] referring an accused to any other court for trial or sentencing retains jurisdiction relating to
the pow ers, functions and duties in respect of bail in terms of this Act until the accused appears in such other court for the first time.
(Emphasis added.)
Does this mean that the magistrate's court, once it has referred an accused to the regional court or the High Court for trial,
is functus officio with regard to the
Page 50
matter of the accused's bail, and retains no further jurisdiction thereanent? Or may it be said that the magistrate's court
and the higher court in question hold concurrent jurisdiction once the accused has appeared in the latter court? The
question is one of some importance, as it fairly frequently happens that the higher court is for one reason or another
unable or unavailable to hear a bail application of an accused on trial or awaiting trial before it. In such cases the accused's
right to apply for bail speedily may be denied him if the referring lower court were deprived of its original jurisdiction. The
question was considered in Director of Public Prosecutions, Eastern Cape, v Louw NO: In re S v Makinana [6] where it was
observed: [7]
The w ords 'subject to the provisions of s 50(6)(c)' in s 60(1)(b) must be interpreted in conformity w ith, and in such a w ay as to
promote, the values of the Constitution and the spirit, purport and objects of the Bill of Rights. It must be interpreted, in other w ords,
so that it promotes the value of, and the right to, freedom as w ell as the right to be 'released from detention if the interests of justice
permit, subject to reasonable conditions' and the right of access to court. More than that, it must be interpreted in such a w ay that it
gives effect to the State's obligations, in terms of s 7(2) of the Constitution, not only to abstain from interfering w ith these rights—the
negative obligation to respect them—but also to positively facilitate their exercise—the positive obligations to protect, promote and
fulfil them.
In the course of granting a declarator the court in Makinana held that the magistrate's court has exclusive jurisdiction to
hear a bail application in respect of any case in which an accused person is charged with a Schedule 6 offence [8] (subject to
a directive in terms of s 50(6)(c)) from the first appearance of the accused until he appears in such higher court to which his
matter may be transferred, whereupon such other court shall enjoy jurisdiction to entertain a bail application. The court did
not declare such higher court to be vested with exclusive jurisdiction to consider bail once the accused has appeared
before it.
In S v Mzatho and Others [9] the court approved of the concurrent jurisdiction approach by holding that in appropriate
circumstances (for instance where it would be unhealthy for an area's sole regional magistrate to hear a bail application as
well as the subsequent trial) a regional magistrate could refer a matter back to the magistrate's (district) court, even though
the accused had already appeared before him pursuant to a referral by the lower court.
6.2.2 Schedule 6 applications
In the previous edition of this work it was predicted that the introduction into the Act [10] of Schedule 6 had created a
jurisdictional conundrum which was likely to produce serious repercussions in practice. The difficulty was created by the
provisions of s 50(6)(c) of the Act, which stipulated that all bail applications subject to Schedule 6 had to be heard by the
regional courts. This was
Page 51
self-evidently not practicable, for two reasons: first, even a passing acquaintance with the daily trial rolls with which regional
courts are required to cope, will bring the swift realisation that such courts are unlikely to be able to accommodate, in
addition, sometimes protracted bail applications; and secondly, especially in rural areas served by a single regional court,
difficulties may easily and frequently arise when such a court is required to deal with a Schedule 6 bail application one day,
and (as the sole lower court clothed with jurisdiction to try Schedule 6 crimes) the trial of the same former bail applicant
soon thereafter. Accordingly, the section was soon amended [11] so as to direct the hearing of such applications by the
district courts. Section 50(6)(c) of the Act now reads:
The bail application of a person w ho is charged w ith an offence referred to in Schedule 6 must be considered by a magistrate's court:
Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in w riting by him or her may, if he or
she deems it expedient or necessary for the administration of justice in a particular case, direct in w riting that the application must be
considered by a regional court.
It will be seen that the proviso to the provision, which empowers the attorney-general to redirect a Schedule 6 bail
application from a district magistrate to a regional magistrate, creates the very danger alluded to above: a regional court
hearing a Schedule 6 bail matter is likely (especially in rural areas served by only one regional court) to preside over the trial
of the erstwhile bail applicant. This does not necessarily imply that the trial court will have been privy to evidence, presented
at the bail hearing, which is likely to be prejudicial to the accused at trial—more particularly as s 60(11B)(c) of the Act
stipulates that the record of bail proceedings forms part of the subsequent trial record. However, the automatic admission
of the bail record remains subject to the common law in terms of which a record may only be statutorily admitted if it is
otherwise admissible. Thus, the regional court sitting as a trial court may have been privy to inadmissible evidence
presented during the bail hearing. Furthermore, s 60(11B)(c) of the Act specifically excludes from automatic admission of
the bail record evidence concerning the accused's previous convictions and any charges pending against him.
When a regional magistrate (or, for that matter, by virtue of different procedural coincidence, a judge of the High Court)
who had been privy to prejudicial evidence led at the bail hearing (or contained in a bail record before a court hearing a bail
appeal) is appointed to preside over the subsequent trial, the question may well arise whether such magistrate or judge
ought to recuse himself from hearing the trial. Such a situation arose in S v Bruinders, [12] where Sher AJ said the following
in a comprehensive judgment on the law applicable to recusal: [13]
Page 52
[60] Although our criminal justice model is essentially an adversarial one—w here the court is left to the comfort and safety of its
armchair w hile the State and the accused contest the arena—the issue of bail is dealt w ith somew hat differently. The Act does not
treat it as something w hich is simply to be left to one or other of the parties to raise and deal w ith, particularly in regard to matters of
procedure, proof and evidence.
[61] The Act provides that, if the question of the possible release of an accused on bail is not raised by him/her or the prosecutor, the
court is required to ascertain from the accused w hether he or she w ishes it to be considered by it. In doing so, the court must
ascertain w hat is in dispute and w hat is not. Matters that are not in dispute may be dealt w ith informally. In respect of matters that
are in dispute the court may 'require' the prosecutor or the accused, as the case may be, to adduce evidence.
[62] If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal, or that it lacks
'important' information needed for it to arrive at a decision in regard to bail, the Act enjoins it to order that such information or
evidence be placed before it. In essence the court's role and function in bail proceedings are thus closer to the inquisitorial model.
[63] Given the active, even interventionist, role w hich a court is required to play in bail proceedings, it is not unlikely that decisions
w hich a court may make in regard to bail proceedings w ill attract more challenges w hich are based on the grounds of an alleged
perception of bias. This becomes apparent also if one has regard to the relevant considerations w hich the court is required to take
into account in bail proceedings.
[64] The Act provides that it is against the interests of justice to permit the release from detention of an accused w here there is a
likelihood that he or she w ould endanger the safety of the public or any particular person, commit a Schedule 1 offence, attempt to
evade trial, attempt to influence or intimidate w itnesses, conceal or destroy evidence, undermine or jeopardise the objectives of the
proper functioning of the criminal justice system, including the bail system, disturb the public order, or undermine public peace or
security.
[65] In regard to each of the considerations set out in the preceding paragraph, the Act sets out a number of factors w hich the court
may take into account.
[66] These do not only relate to traditional considerations w hich reflect on the likelihood of the accused standing trial in the event bail
w ere to be granted, such as the accused's 'emotional, family, community or occupational ties' to the place w here he is to be tried, any
means w hich the accused w ould have to leave the country, and the general nature and gravity of the charges on w hich the accused
is to be tried. They also pertain to factors that reflect upon the person of the accused or his character, or the specific nature of the
offences w ith w hich he/she is charged.
[67] So, for example, in respect of the accused the court may have regard to any disposition w hich he/she has to violence, or to
commit offences referred to in Schedule 1 (as may be evident from his or her past conduct), any threat of violence the accused may
have made to any person (not only to w itnesses), any 'resentment' the accused is alleged to harbour against any person, the
relationship the accused has w ith the various w itnesses, the fact that the accused supplied false information at the time of his arrest,
w hether the accused previously failed to comply w ith bail conditions that w ere imposed, w hether the accused is in custody or on bail
on other charges, or is out on parole, and finally, w hether the accused has previously been convicted of any other offences.
[68] The introduction of information pertaining to previous convictions is something not ordinarily countenanced in pre-trial
proceedings. At common law an accused's previous
Page 53
convictions are inadmissible in criminal proceedings prior to sentence stage because they are considered to be legally irrelevant by
virtue of the highly prejudicial effect know ledge of them may have on the mind of the trier of fact.
[69] So sensitive are our courts to having any evidence that may reflect upon the fact that an accused has previous convictions
placed before them (prior to sentence stage) that they have on occasion had cause either to recuse themselves, or to request a
higher court to set aside a conviction and sentence, because the accused appeared before them in leg-irons, or manacles, or prison
garb, w hich denoted that they w ere serving a sentence of imprisonment and thus had a prior criminal record.
[70] There are also certain statutory prohibitions in place in this regard. Section 211 of the Criminal Procedure Act provides that
evidence of previous convictions shall not be admissible, except w here otherw ise expressly provided for by the Act, or w here the fact
of a previous conviction is a necessary element of any offence w ith w hich an accused has been charged.
[71] The Act also provides that, save w here otherw ise expressly provided for, an accused shall not even be asked w hether he has
previous convictions, nor may he be asked any questions w hich tend to show that he has previously committed or has been convicted
of, or has been charged w ith any offence, other than the offence w ith w hich he is charged, or that he is of bad character.
[72] In bail proceedings such questions are not only admissible, but the accused is compelled in fact to inform the court w hether he
has any previous convictions and w hether there are any other charges pending against him and, if so, w hether he has been released
on bail in respect of such charges. A failure to make such disclosure constitutes an offence for w hich the accused may be liable, on
conviction, to a fine or to imprisonment for a period of up to tw o years.
[73] Although the Act also provides that any answ ers to such questions, or any information pertaining to an accused's previous
convictions or other pending charges, shall not form part of the record of his/her subsequent trial, the remaining information w hich
may be elicited and w hich may pertain to the accused's character and disposition, or the public's perception of him/her, or to the
circumstances surrounding the commission of offences w ith w hich he/she has been charged, as set out above, is admissible in any
subsequent proceedings and may be used against him/her at trial.
[74] In regard to the offences w ith w hich the accused has been charged, the court may not only have regard to the nature thereof in
general terms, but also to the particular circumstances under w hich the specific offences w ere committed, and w hether such
circumstances are likely to induce a sense of shock or outrage in the community, or w hether the public's 'sense of peace and security'
w ill be undermined or jeopardised by the release of the accused. It may also have regard to the strength of the case w hich the
accused w ill face, and the nature and gravity of the punishment w hich is likely to be imposed should the accused be convicted on the
charges. The latter considerations may result in the court being directly exposed to some of the State's evidence implicating the
accused in the commission of the offences w ith w hich he/she has been charged.
[75] It w ill thus be apparent, from w hat is set out above, that the inquiry w hich a court is required to undertake in bail proceedings is
not only an extensive one w hich requires more than an armchair approach, but also an exercise w hich may, more often than not
(particularly w here bail is opposed), result in the court becoming privy to information about the accused, or the offences w ith w hich
he/she has been charged, w hich it w ould not ordinarily be possessed of, before the conclusion of the trial of the accused, and often
not even then. By its
Page 54
very nature, some of this information could potentially result in the court forming an unfavourable impression of the accused, in its
mind, and adopting a biased approach tow ards him, even if it is not conscious of doing so.
[76] As w as pointed out in R v Abdroikov:
'Unconscious prejudices and bias can be insidious in their operation on people's minds.'
[77] For these reasons, in my view , it is inimical to an accused's constitutional right to a fair and impartial trial for him or her to be
tried by the same presiding officer w ho has previously presided over a bail hearing at w hich the various factors and considerations
outlined above have been traversed. This w ill especially (but not only) be the case in opposed bail applications. Even in the course of
an informal application for bail made by an accused w ithout opposition from the State, it is not inconceivable that the court may
become privy to information pertaining to the accused's person or character—such as information pertaining to his previous
convictions or to his disposition to violence or to commit crime—or to other information, w hich may subconsciously prejudice an
accused in the mind of the court.
[78] In my view , because of this, judicial officers who have presided over such bail applications should ordinarily recuse themselves from
presiding over the subsequent trial of the accused, in the interests of maintaining the integrity of the proceedings and upholding the
accused's constitutional right to a fair trial.
[79] After all, even if there may be no actual bias on the part of the presiding officer and the later trial is conducted w ith scrupulous
adherence to the prescripts of fairness and due process, it is the public's perception 'of the possibility of unconscious bias [that] is the
key'. (Emphasis added.)
It is noteworthy that in S v Bruinders the court ultimately held that the fact that the trial magistrate had previously also
heard the bail application (where the accused's numerous previous convictions had been revealed) had led to an unfair trial:
[108] In my view , had the notional reasonable and objective bystander been informed that the magistrate in the appellant's criminal
trial had presided over his bail application some three months earlier, at w hich time details of his numerous previous convictions w ere
revealed together w ith details of how he had allegedly committed one of the offences w ith w hich he w as charged, and that the
investigating officer had also testified that the appellant had a tendency to commit crimes involving violence and dishonesty, such an
observer w ould have had grave concerns about w hether the appellant w ould get a fair trial. Put differently, in my view , a reasonable,
objective and informed observer in such circumstances w ould reasonably apprehend that the magistrate w ould not bring an impartial
mind to bear upon the appellant's case.
[109] In the result, by failing to recuse herself from hearing the appellant's matter the magistrate breached the appellant's
constitutional right to a fair trial.
6.2.3 Court to which accused is referred in terms of s 59A

Apart from the function described in s 50(6)(c) of the Act, another function which may be performed by an attorney-general
or authorised prosecutor is to grant bail by virtue of the provisions of s 59A of the Act. Pursuant to the
Page 55
performance of this function, the accused is required to appear 'at the court' [14] determined by the functionary; and such
court may extend bail or consider the question of bail afresh. [15] It is submitted that this means that, once the accused's
bail has been extended by the court to which he had been referred by the attorney-general or prosecutor in terms of s
59A(4) of the Act, another court to which the accused is subsequently referred will not acquire the power mero motu to
consider bail afresh. [16] The jurisdiction conferred upon such 'subsequent' court by s 60(1)(b) may then only be exercised if
the accused or the prosecution raises an aspect of bail which requires further adjudication.
6.3 Jurisdictional facts [17]

The accused is entitled to be released on bail and a court may consider an application for bail only if the accused is 'in
custody in respect of an offence'. [18] This means that s 60(1) of the Act does not apply to instances where the accused is
in custody for any other reason, for instance pending an appeal [19] or transfer to a rehabilitation centre. [20] In Mbele [21]
Stegmann J drew attention to the requirement of s 60(1)(a) that, for the jurisdiction of a bail court to be activated, the
accused had to be in custody 'in respect of an offence'. He contrasted the section's wording with that of s 50(6) (which
makes provision for a person who has been 'arrested for the alleged commission of an offence') and s 50(7) (which, before
its repeal, provided for a person 'arrested on suspicion of having committed an offence') and remarked as follows: [22]
These provisions make it apparent that a situation can occur in w hich a person may be arrested and held in detention and may not
qualify to institute statutory proceedings for his release on bail. The position appears to be that release on bail, in terms of the
statutory provisions, only becomes a possibility once a detained person has been charged w ith an offence, or, less formally, once it
has been alleged (presumably by the person arresting or prosecuting him) that he has committed an offence.
The remedy of a detained person w ho has not been charged, and against w hom no allegation has been made that he has
committed an offence, is not to seek his release on bail: it is to move the court to protect his liberty by means of the common law
remedy of the interdictum de homine libero exhibendo, a common-law remedy w hich has now been entrenched by s 25(1)(e) of the
interim Constitution.
Furthermore, the bail application may succeed only 'in respect of such
Page 56
offence': [23] thus, where the accused is in custody in respect of an offence and for other reasons, bail may be granted in
respect of his incarceration vis-à-vis the offence only. The same would apply if the accused had other charges pending in
other courts and in respect of which he was in custody, for his detention would arise from a separate cause in each distinct
matter. This much appears from the judgment of Van Dijkhorst J in S v Vermaas [24] , where he remarked [25] that a court
'must not regard the fact that in another case another court refused bail to the applicant as an impediment to hearing this
matter [an application for bail in respect of different charges] on its merits'.
It is implicit in the wording of the section that bail may only be granted if the accused is in custody. Thus, the court has
no jurisdiction in terms of s 60(1) to consider bail in anticipation of the accused being taken into custody. In Trope v
Attorney-General [26] the court was approached for bail on application by persons who anticipated that their arrest was
imminent. Curlewis J observed that such an order would not be competent as 'the order which they asked would be in the
nature of an anticipating order, which I do not think [the] Court ought to give . . .'. [27]
6.4 The words 'at any stage' in s 60(1)(a)

In Twayie v Minister van Justisie [28] the accused had been arrested on a Friday evening. Despite the fact that the police had
no objection to police bail, their power to grant such was excluded by the limitations as to bailable offences contained in s
59 of the Act. The accused thereupon sought to obtain bail from a magistrate who was requested to convene a court for
such purpose. The Chief Magistrate of Bloemfontein, however, refused to convene a court. On urgent application to the
Supreme Court it was held [29] that s 60 of the Act (as it then stood) should be interpreted against the background of the
presumption of innocence, and that the words 'first appearance' contained in the then s 60(1) did not indicate an intention
to limit bail applications to the accused's compulsory first appearance in court. The court held that the words 'first
appearance' included a first appearance at the request of the accused. [30] It seemed as if this approach had been
concretised in ss 50(6) and 50(7) of the Act, which made provision for the accused to be brought before the court at his
request. [31] It is further submitted that the sentiments expressed in Twayie's case are equally applicable to the words 'at
any stage' introduced into s 60(1)(a) of the Act in 1995.
A complicating factor in interpreting the words 'at any stage' in s 60(1)(a) of
Page 57
the Act arises, however, where the application for bail is not the first in respect of the offence for which the accused had
been arrested. S v Barnard [32] is a case in point: there the accused was on bail but failed to attend court. A warrant for his
arrest was issued and bail was provisionally cancelled. After four court days the accused voluntarily returned to court. His
explanation for his absence was that he fled on impulse. The court was obliged to cancel bail. An application was then made
on behalf of the accused for the granting of further bail in terms of s 60 of the Act. The following issue arose: can s 60 be
invoked again where the court was obliged to cancel bail in terms of the peremptory provisions of s 67(1) and (2)?
It was argued on behalf of the accused that the words 'at any stage' in s 60(1) are so wide that they could be construed
to include a further bail application after cancellation. But Coetzee J preferred to interpret s 60 in the context of ss 67 and
68 and concluded as follows: [33]
This in my view is absurd, something absolutely out of kilter w ith the internal logic of this scheme, to interpret it in such a w ay that
certain things w ould occur peremptorily, such as confirmation of provisional w ithdraw al, the finality of an order, and then
simultaneously to derail it by implying that a further application could be made immediately. The Legislature did not stipulate thus,
and the Court has no inherent pow er of any nature in this area to order it. These provisions contain the totality of the Court's
pow ers. If the accused's initial right to be released from custody by means of bail has been exhausted, his rights and the Court's
pow ers subsequently w ould exist only w ithin the confines of these further provisions. (My translation)
Unfortunately, the learned judge decided the issue not so much on legal principle as some nebulous 'internal logic' or 'policy'
of the bail legislation, and therefore did not assist at all in the interpretation of the words in question. [34]
In S v Nkosi en Andere [35] Harms J arrived at an opposite conclusion to that reached in S v Barnard's case, albeit on
different considerations. This is what the learned judge held: [36]
Page 58
As w ith all the other instances mentioned, the aim of the w arrant issued in terms of s 67 is to bring the accused before the court. It is
not a method to effect the accused's incarceration until the trial is finalised. Put differently, it is not an act performed in the execution
of imprisonment imposed for an indefinite term, w hich depends fortuitously on the time it takes to complete the trial. The conclusion
draw n in Barnard's case means that the non-appearance under s 67, although not an offence, is nonetheless punishable. The
punishment is indirect, namely the loss of the right to apply once again for bail. I find it difficult to accept that one should by
implication read into s 67 such a penalty especially w here, as said before, s 67 creates no offence. (My translation)
In S v Le Roux, [37] Claassen J held that the interpretation given to the words in question in S v Barnard was moreover
unconstitutional. [38] Dealing with ss 11 and 25(2)(d) of the interim Constitution, the learned judge observed: [39]
I am of the view that an accused has the right at any time to apply to be released on bail. This is a fundamental right that springs
from s 25(2)(d) and 11 of the (interim) Constitution. Furthermore, s 60 of the Criminal Procedure Act 51 of 1977 is not in conflict w ith
these provisions of the Constitution. This right to bail is also applicable in cases w here an accused is granted bail, but w here he has
breached his bail conditions, resulting in w ithdraw al of bail. (My translation)
It is respectfully submitted that the decisions in S v Nkosi and S v Le Roux are correct for the simple reason that the words
'at any stage' in s 60(1)(a) of the Act, on an ordinary construction, do not exclude a renewed application for bail after the
forfeiture of bail granted and paid pursuant to an earlier application. The correct interpretation of the section is therefore
that the accused may apply for and be released on bail up to the moment of his conviction, notwithstanding an earlier
cancellation of bail.
The position would be different, however, if the accused were to make a renewed request for bail in circumstances where
an earlier application had been refused. In such a case the factual material which was the subject of the earlier refusal would
be res judicata. [40] However, if new facts were to come to light, or changed circumstances were to arise, there would be no
bar to a court entertaining a fresh bail application. [41] Thus Wessels J said in R v Deetlefs: [42]
In my opinion the fact that an application has been made and refused, does not deprive the magistrate of his pow ers of reconsidering
the matter upon fresh information w hich is placed before him. It follow s therefore that if fresh circumstances arise, the accused w ill be
entitled
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to apply to the magistrate and, I think, that the magistrate is the person to w hom the application should be addressed in the first
instance. [43]
6.5 Request by accused to be brought before court

As is pointed out elsewhere, s 60(1)(a) of the Act does not stipulate when an application for bail may be made for the first
time but, instead, provides that the accused shall 'be entitled to be released on bail at any stage preceding his or her
conviction'. Does this mean that the accused is entitled to be brought to court at his own request, prior to his scheduled
'first appearance', in order to apply for bail? This aspect has been the subject of a somewhat curious development. Thus, s
60(1) of the Act, as it read before 1995, provided simply that the accused could apply for bail 'at his first appearance in a
lower court'. In Twayie v Minister van Justisie [44] it was held that the words 'first appearance' included a first appearance at
the accused's request. This approach briefly appeared to have been concretised in ss 50(6) and 50(7) of the Act, introduced
in 1995, [45] which made provision for the accused to be brought before the court at his request. Alas, such clarity was
short-lived: the substitution in 1998 [46] of s 50(6), and the deletion of s 50(7), removed all express reference to the
accused's appearance at his request. A saving grace is nevertheless contained in s 50(6)(a) of the Act, which reads as
follows:
At his or her first appearance in court a person contemplated in sub-section (1)(a) who—
(i) W as arrested for allegedly committing an offence shall, subject to this sub-section and section 60—
(aa) be informed by the court of the reason for the detention to continue; or
(bb) be charged and be entitled to apply to be released on bail,
and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be released. . . . [47]
It is submitted that the reasoning in Twayie, which led to the interpretation of the words 'first appearance' to include a first
appearance at the request of the accused, is equally applicable to s 50(6)(a) of the Act. It follows that an interpretation of
ss 60(1)(a) and 50(6)(a) of the Act which is both liberal and consonant with the accused's constitutional right to liberty,
leads to the conclusion that the accused may be brought to court in order to apply for bail prior to his scheduled first
appearance in court.
The 1998 amendment of the Act has seen the introduction of what at first blush appears to be a somewhat controversial
clause: s 50(6)(b) provides that 'an arrested person contemplated in paragraph (a)(i) is not entitled to be brought to court
outside ordinary court hours'. A careless reading of this provision may lead to the conclusion that an accused person is no
longer entitled to be brought to court at his request if that would entail the court sitting 'outside ordinary court hours'. It is
important to note, however, that the only arrested persons not
Page 60
entitled to be brought to court outside ordinary court hours are those contemplated in s 50(6)(a)(i) of the Act, which latter
sub-section relates in terms to persons 'contemplated in sub-section (1)(a)'. From this it follows—by a rather unnecessarily
roundabout route—that an arrested person is not only entitled to be brought to court at his own request prior to his
scheduled first appearance, but that he is entitled to be brought to court outside ordinary court hours unless he is an
arrested person contemplated in s 50(1)(a)—that is, one in respect of whom the 48-hour period referred to in that sub-
section expires on a day 'which is not a court day or on any court day after 4 o'clock in the after-noon'.
6.6 No limitation as to offences

As was seen above, [48] ss 59 and 59A of the Act limit the power of police officials and an attorney-general or authorised
prosecutor, respectively, to grant bail by stipulating that such power is excluded where the accused is in custody in respect
of certain specified offences. Thus, police officials lack the power to grant bail in respect of offences referred to in Part II or
III of Schedule 2 to the Act, while the jurisdiction of an attorney-general or his representative is confined to those offences
listed in Schedule 7 to the Act. An analogous limitation imposed upon magistrates by the former Act [49] precluded the
granting of bail to accused persons who were in custody in respect of murder or treason, and made the granting of bail in
rape cases an exercise of absolute discretion by the magistrate. [50] However, the Act contains no provisions limiting the
granting of bail by a court to certain bailable offences. As a general proposition it may therefore be asserted that both
lower courts and superior courts have the jurisdiction to grant bail in respect of any offence. This general state of affairs
has now been somewhat qualified by the provisions of s 50(6)(c) of the Act, which stipulates that the bail application of a
person who is charged with an offence referred to in Schedule 6 of the Act 'must be considered by a magistrate's
court'. [51]
The magistrate's court, however, does not entirely usurp the jurisdiction of the regional court with regard to Schedule 6
offences: the power to adjudicate upon bail applications in respect of such charges is retained by the district court, but the
jurisdiction to exercise such power may be passed to the regional court in the event that the Director of Public Prosecutions
or a prosecutor authorised thereto in writing considers that the regional court ought to consider the matter. [52]
6.7 Release absolutely conditional

Prior to its amendment in 1995, s 60(1) of the Act made it a peremptory condition of the accused's release on bail that he
deposited with the clerk of the
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court or the registrar or a member of the staff of the prison or police station where he was being held, the sum of money
determined by the court. [53] However, s 60(2) qualified the condition by permitting the accused to furnish a guarantee in
lieu of money. These provisions, though removed from their original place, have been substantially retained in the amended
s 60, to which a new sub-section 60(13) has been added. Sub-section 60(13) [54] reads as follows:
The court releasing an accused on bail in terms of this section, may order that the accused—
(a) deposit w ith the clerk of the magistrate's court or the registrar of any High Court, as the case may be, or w ith a correctional
official at the correctional facility w here the accused is in custody or w ith a police official at the place w here the accused is in
custody, the sum of money determined by the court in question; or
(b) shall furnish a guarantee, w ith or w ithout sureties, that he or she w ill pay and forfeit to the State the amount that has been set
as bail, or that has been increased or reduced in terms of section 63(1), in circumstances in w hich the amount w ould, had it been
deposited, have been forfeited to the State.
It will be seen that the sub-section has been somewhat inaccurately worded, for the impression is given that a court
granting bail may in its discretion choose not to order the payment of a sum of bail money (or, in lieu thereof, the posting
of security). It is submitted, however, that the grant of bail permits the accused's release only on the absolute condition
that he pays bail or furnishes a guarantee [55] —and that the introductory sentence of s 60(13) ought to have been
couched in mandatory terms. That much is evident from the wording of s 58 of the Act, which stipulates as follows:
The effect of bail granted in terms of the succeeding provisions is that an accused w ho is in custody shall be released from custody
upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his bail. . . . (Emphasis added.)
The payment of bail is, after all, the feature that distinguishes bail from other forms of pre-trial release. Through bad
draftsmanship, however, the legislature (through amendment of the Act in 2008) [56] created the prospect of release on
'bail' being achieved without any requirement of payment of a sum of money or provision of security with or without surety.
Section 60(2B) of the Act now provides the following:
(a) If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), and
if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability
of the accused to pay the sum of money being considered or any other appropriate sum.
(b) If, after an inquiry referred to in paragraph (a), it is found that the accused is—
(i) unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an amount of
money for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as
provided for in subsection (13)(b); or
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(ii) able to pay a sum of money, the court must consider setting conditions for the release of the accused on bail and a sum of
money w hich is appropriate in the circumstances.
Clearly the release of the impecunious accused without requiring him to post bail or security, and coupled with appropriate
conditions, falls squarely under the provisions of s 72 of the Act, which provides terms for release on warning 'in lieu of bail'.
The absolute bail condition referred to in this paragraph is discussed more fully below. [57]
Neither ss 59(1)(a) and 59A (in respect of extra-curial bail), nor s 60 (in respect of bail granted by a court), requires the
imposition of any absolute bail condition other than that requiring the payment of bail money. However, it is implicit in the
sections, and indeed in the whole concept of bail, that bail is granted on condition that the accused undertakes to stand
trial. [58] This means that bail is granted subject to the accused's undertaking to appear in court at the time and place
appointed (or to which the proceedings are from time to time postponed), and that the accused is thereafter released only
upon payment of the bail money. [59] It therefore appears that both the accused's undertaking and payment of the bail
money are absolute bail conditions, for without one or the other the bail contract will not become effective. [60] For this
reason these conditions appear in all bail orders.
The absolute condition that the accused stands trial is also discussed more fully below. [61]
6.8 Additional discretionary conditions

Section 62 of the Act allows for the imposition of discretionary bail conditions by the court having jurisdiction. These
conditions are additional to the absolute conditions that the sum of money determined as bail must be paid and that the
accused should stand trial. [62] Such discretionary bail conditions are discussed below. [63]
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6.9 Duration of bail granted by court [64]

Release on bail in terms of s 60 shall—unless sooner terminated under the provisions of the Act [65] —endure until a verdict
is given by a court in respect of the charge to which the offence in question relates. [66] If sentence is not imposed
immediately after the verdict is given, the court in question may extend bail until such time as sentence is imposed. [67]
[1] Emphasis added.
[2] 1997 (1) SAC R 127 (O) 150b (emphasis added). The origina text reads: 'Daar moet dus myns insiens inderdaad in alle aansoeke vir borgstelling
bepaal word watter effek vrylating op die belange van geregtigheid sal hê. Dit kan nie net gefingeer of vermoed word nie. Die voorsittende beampte
kan ook nie sommer met sy arms gevou sit indien geeneen van die partye enige inligting in hierdie verband voor hom plaas nie. By die bepaling van
die belange van geregtigheid rus daar 'n aantal pligte op die voorsittende beampte wat daarop neerkom dat sy of haar rol fundamenteel verskil van
dié van 'n voorsittende beampte in gewone aansoeke en verhore. Die voorsittende beampte in 'n borgaansoek is nie slegs 'n onpartydige beoordelaar
tussen die partye nie. Hy of sy het inteendeel 'n plig om indien nodig self die aangeleentheid behoorlik te ondersoek. . . . So moet die hof byvoorbeeld
in gevalle waar die partye nie spesifiek in verband met die borgaansoek voor die hof is nie, soos reeds genoem, self die kwessie van borgtog
aanhangig maak waar die beskuldigde en/of die Staatsaanklaer dit nie doen nie (art 60(1)(c)).'
[3] See also, generally, S v Ngwenya 1991 (2) SAC R 520 (T) in which the duty of informing the accused of his right to apply for bail was placed on
the court even before the introduction of s 60(1)(c) of the Act.
[4] Section 50(6) of the Act, as inserted by Act 85 of 1997.
[5] Section 60(1)(b) of the Act.
[6] 2004 (2) SAC R 46 (E).
[7] Above, 56g.
[8] See 'Schedule 6 applications' below.
[9] 2007 (2) SAC R 309 (T).
[10] By Act 85 of 1997.
[11] By Act 62 of 2000.
[12] 2012 (1) SAC R 25 (WC C ).
[13] At paras [60]-[79].
[14] Section 59A(4) of the Act. This will almost invariably be a district court.
[16] Section 59A(5)(a) and (b) of the Act.
[17] The term is taken from S v Ramgobin (1) 1985 (3) SA 587 (N). It means that jurisdiction accrues only if certain facts have been determined
objectively. See also Hurley v Minister of Law and Order 1985 (4) SA 709 (D); S v Baleka 1986 (1) SA 361 (T).
[18] Section 60(1)(a) of the Act, which reads as follows:
An accused who is in custody in respect of an offence shall, subject to the provisions of s 50(6), be entitled to be released on bail at any stage
preceding his or her conviction in respect of such offence . . .
[19] See s 309(4)(b) read with s 307(2) of the Act.
[20] See s 296 of the Act.
[21] 1996 (1) SAC R 212 (W).
[22] At 225e-f. See also Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SAC R 127 (O) 156a.
[24] 1996 (1) SAC R 528 (T).
[25] At 537g.
[26] 1925 TPD 175.
[27] At 176.
[28] 1986 (2) SA 101 (O). For a discussion of this Full Bench decision, see para 2.5.
[29] At 104E-F. See also 103I-J; 105G.
[30] Contra Ferreira Strafproses in die Laer Howe (1979) 201.
[31] See Act 75 of 1995.
[32] 1985 (4) SA 439 (W).
[33] At 443: 'Dit is myns insiens absurd, iets wat hoegenaamd nie in lyn lê met die binnelogika van hierdie skema nie, om dit so uit te lê as sou
sekere dinge, gebiedend, plaasvind soos bekragtiging van voorlopige intrekking, die finaliteit van bevel en dan terselfdertyd dit te ontsenu deur te
impliseer dat daar nou onmiddellik weer 'n verdere aansoek gedoen kan word. Die Wetgewer het dit nie so bepaal nie en die Hof self het geen
inherente mag van enige aard op hierdie gebied om dit te beveel nie. Hierdie bepalings bevat die totaliteit van die magte van die Hof. Indien die
beskuldigde se aanvanklike reg om uit bewaring te kom by wyse van borgtog uitgeput is, is dit slegs binne hierdie verdere bepalings dat sy regte en
die Hof se magte by latere gebeure bestaan.'
[34] See the comments of Nel Borgtoghandleiding (1987) 162.
[35] 1987 (1) SA 581 (T).
[36] At 585C : 'Soos in al die ander gevalle genoem, is die doel van die lasbrief uitgereik in terme van art 67 om die beskuldigde voor die hof te
bring. Dit is nie 'n metode om die beskuldigde se inhegtenishouding tot afhandeling van die verhoor te bewerkstellig nie. Anders gestel, dit is nie 'n
handeling verrig in die uitvoering van 'n opgelegde gevangenisstraf vir 'n onbepaalde termyn wat afhang van die toevalligheid van die tydsduur tot en
met afhandeling van die verhoor nie. Die gevolgtrekking in S v Barnard se saak beteken dat die nie-verskyning onder art 67, hoewel nie 'n misdaad
nie, tog strafbaar is. Die straf is 'n indirekte straf, naamlik die verlies van die bevoegdheid om weer aansoek om borg te doen. Ek vind dit moeilik om
te aanvaar dat mens so 'n straf by wyse van implikasie in art 67 moet inlees veral waar, soos gesê, art 67 nie 'n misdryf skep nie.'
[37] 1995 (2) SAC R 613 (W).
[38] At 617e.
[39] At 618d: 'Ek is die mening toegedaan dat 'n beskuldigde die reg het om te eniger tyd aansoek te doen om op borg vrygelaat te word. Hierdie
reg is 'n fundamentele reg wat voortspruit uit arts 25(2)(d) en 11 van die Grondwet. Voorts is art 60 van die Strafproseswet 51 van 1977, nie in stryd
met hierdie bepalings van die Grondwet nie. Hierdie reg op borg is ook toepaslik in gevalle waar 'n beskuldigde reeds borg verleen is, maar waar hy sy
borgvoorwaardes verbreek het en die borg daarna ingetrek is.'
[40] S v Casker 1971 (4) SA 504 (N).
[41] See S v Acheson 1991 (2) SA 805 (Nm); S v De Villiers 1996 (2) SAC R 122 (T). See also s 65(2) of the Act.
[42] 1960 (1) SA 388 (GW).
[43] At 389H.
[44] 1986 (2) SA 101 (O). See also Novick v Minister of Law and Order 1993 (1) SAC R 194 (W).
[45] By Act 75 of 1995.
[46] By Act 85 of 1997.
[48] C h 5.
[49] Act 56 of 1955.
[50] Act 56 of 1955, s 88. These limitations were removed by Act 9 of 1968, s 4.
[52] See the proviso to s 50(6)(c) of the Act.
[53] Section 69(1) of the Act now allows for the bail money to be deposited by someone other than the accused.
[54] Section 13(a) was cosmetically amended in 2008.
[55] See para 11.6. See also C haskalson et al Constitutional Law of South Africa (1996) 27-35.
[56] By Act 66 of 2008, s 9(a).
[57] Para 10.2.
[58] In this respect, s 58 of the Act provides as follows:
'The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall be released from custody upon payment of,
or the furnishing of a guarantee to pay, the sum of money determined for bail, and that he shall appear at the place and on the date and at the time
appointed for his trial or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned. . . .'
(Emphasis added.)
[59] Or, in terms of s 60(13) of the Act, furnishing a guarantee.
[61] Para 10.9.
[62] Sections 58 and 60(13) of the Act. C f also s 59(1)(a).
[63] Paras 10.11ff.
[64] The duration of bail granted extra-curially in terms of ss 59 and 59A of the Act is discussed in para 5.7.
[65] See, for example, ss 66, 67, 68 and 68A of the Act.
Page 64
7
Procedure and onus

Before its amendment in 1995 the Act was silent on the procedure which had to be followed in bail applications. A number of
possibilities presented themselves: (a) the procedure might be rigidly formal along the lines of applications in civil matters;
(b) the procedure might be informal, but not entirely so, with the result that aspects such as an onus of proof, the right to
legal representation, the right to lead viva voce evidence, the right to cross-examination, etc were recognised; (c) the
procedure might be entirely informal and independent of any of the usual rules of procedure, as in administrative
proceedings. [1]
It is trite to say that the normal rules of criminal procedure were applicable to bail applications, and the last of these
possibilities could therefore be discounted. Although it had been said that informal bail proceedings might be desirable, [2]
particularly where the accused was undefended, [3] no real authority existed for holding that bail applications should follow a
more or less informal procedure. It is true that in practice this procedure was frequently followed: thus, ex parte statements
from the bar were often allowed [4] and certain rules of evidence were relaxed. [5] However, the correct procedure was that
which was prescribed for applications in general: the accused would make the application in court, supported by such
evidence as he might wish to present; thereafter the state could cross-examine, whereupon it could in turn present its
evidence and submit to cross-examination. In practice such applications were almost invariably made orally, [6] and evidence
was led only once the issues had been identified through indications from the bar. This procedure was based on the settled
rules that semper necessitas probandi incumbit illi qui agit [7] ('he who alleges must prove'), which applies to both civil [8]
and criminal [9] cases; and he who bears the evidentiary burden incurs the duty to begin. [10] The accused, who bore the
Page 65
onus of proof in bail applications, [11] therefore (save in exceptional cases) also carried the burden of adducing evidence, and
therefore had to begin.
In practice, however, the reverse sequence was often employed, and the duty to begin was informally determined by the
court after canvassing the issues by questioning the parties (and particularly the prosecutor).
Finally, regarding the question as to who could or should initiate bail application proceedings, s 60(1) of the Act created
the impression that only the accused could raise the question of bail, for the section provided that the accused could apply
to the court, which might then release the accused on bail. The wording of the section in this regard was however of no
significance: while the accused was entitled to apply for bail, [12] and while the court was not apparently obliged to raise the
matter, [13] there was nothing in the section that precluded the court or, indeed, the state from initiating the bail process.
In practice this was often done, usually by the prosecutor, who applied for a postponement of the case and remarked to the
court 'no bail' or 'bail R50' or the like. In Mdhuli [14] the review court went so far as to state that, even in the absence of an
application from the accused, the lower court should have insisted on bail being granted. It was submitted in the previous
edition that this approach deserved support, for it is consistent with the exemplary view that a right (such as the right to
apply for bail) is worthless unless the bearer thereof is aware of such a right; and the court has a duty to inform the
accused of his right to ask for bail. [15]
The questions of who should initiate bail proceedings, and what procedure ought to be followed, have been addressed in
part by s 60(1)(2)(b) and (c), and s 60(3) of the Act as amended in 1995. The question of onus, however, has been left in a
state of uncertainty. [16] These aspects are discussed below. [17]
7.2 Raising the question of bail: s 60(1)(c)

Section 60(1)(c) of the Act formed part of the amendments to s 60 that were introduced in 1995. The sub-section reads as
follows:
If the question of the possible release of the accused on bail is not raised by the accused or the prosecutor, the court shall ascertain
from the accused w hether he or she w ishes that question to be considered by the court.
In practice, when a case is called up for postponement, the prosecutor rarely raises the question of bail, even where it
subsequently turns out that the state manifestly had no objection to or ground for opposing bail. All too frequently,
magistrates in such cases proceed with the postponement without enquiring from the accused whether he wishes to apply
for bail. Thus it is, by and large,
Page 66
left up to the accused to ask—more often than not, either diffidently or indignantly—for bail, sometimes even as he is being
led out of court after the postponement of his case. Although this unhealthy trend persists, some legislative pressure has
been brought to bear on magistrates by the sub-section, in that it enjoins the magistrate to raise the question of bail when
the accused and prosecutor are silent on the topic. It is clear from this sub-section that the legislature intended that
magistrates should become more pro-active in matters concerning bail.
In S v Ngwenya [18] the court held that a positive duty rested on a magistrate to inform the (unrepresented) accused of
both his right to apply for bail and the applicable procedure. Although this may seem to cast a burden onto judicial officers
who, especially in busy reception courts, are under immense pressure, the court's approach is not only consonant with the
provisions of s 60(1)(c) of the Act, but is also consistent with the concepts of a constitutional right to liberty and to a fair
trial. The judgment is even more commendable as it was handed down some considerable time before the advent of a
constitutional democracy in this country, and pre-dates s 60(1)(c) of the Act by some years.
A commendable practice has evolved in our courts, both in the interests of preventing an unnecessary waste of time, and
of limiting the issues, whereby the prosecutor who opposes bail is required to state on record the grounds of his objection.
Unfortunately, all too often a prosecutor who sees his stated grounds being defeated by the evidence adduced by the
accused, leads evidence on extended grounds to the prejudice of the accused and, moreover, in breach of his professional
undertaking as to the grounds upon which the application should be conducted. It is submitted that, as in civil cases where
a party is bound by his pleadings, and as in criminal trials where the state is bound by its further particulars (for instance,
its limitation of the specific grounds of negligence upon which it seeks to found its case in a given matter), the prosecution
is bound by the grounds of opposition it records at the outset of a bail application. Magistrates should not indulge the state
when it strays from the agreed ambit of the application, unless the state makes formal application to do so, on good cause,
and the accused is given an opportunity to meet the additional grounds by adducing further evidence.
7.3 Informal procurement of information: s 60(2)(b)

In terms of s 60(2)(b) of the Act, the court, in bail proceedings
may, in respect of matters that are not in dispute betw een the accused and the prosecutor, acquire in an informal manner the
information that is needed for its decision or order regarding bail.
When the sub-section is compared to s 60(2)(c) of the Act [19] it appears that the legislature elected to distinguish between
'information' (as encountered in
Page 67
s 60(2)(b)) and 'evidence' (provided for in s 60(2)(c)). In the former sub-section, a judicial officer is given an extremely wide
discretion in gathering information which may assist him in reaching a decision on the question of bail. This discretion
appears to be subject only to the requirement that the information so gathered should be 'needed for [the court's] decision
or order', and that the informal information-gathering procedure may be followed only in respect of 'matters that are not in
dispute'. It is important to note that the court's discretion is not confined to applications that are unopposed, but may
extend even to opposed bail applications where there are nevertheless matters that are not in dispute.
The manner in which a court will informally gather information is, of course, up to the judicial officer: traditionally, our
courts have been receptive to factual statements made from the bar by both parties to a bail application, and this tradition
persists. In addition, a judicial officer may call for information to be placed before him by the legal representatives of the
parties, including documents, and may conceivably even question the investigating officer without receiving formal evidence.
7.4 Access to information and presentation of evidence: s 60(14) and s 60(2)(c)

Section 60(2)(c) of the Act provides that, in bail proceedings, the court
may, in respect of matters that are in dispute betw een the accused and the prosecutor, require of the prosecutor or the accused, as
the case may be, that evidence be adduced.
This sub-section deals with bail applications that are either opposed or during the course of which disputed factual matters
arise.
It should immediately be pointed out that this sub-section does not purport to deal with the situation created by s
60(11) of the Act, in terms of which the accused is statutorily required to adduce evidence where he is charged with an
offence referred to in Schedule 5 or Schedule 6 to the Act, and the court is required to give the accused a reasonable
opportunity for doing so. [20]
As one is not dealing here with a requirement by the court that evidence should be adduced merely by virtue of the fact
that the bail application is an opposed one, the question of allocation of the onus does not enter into the equation. Such
factual disputes as may have arisen naturally have to be resolved before the court can come to a decision on the application
for bail. To this end, the sub-section requires of the judicial officer that he calls for evidence to resolve the disputes of fact,
and this he may do by requiring either the prosecutor or the accused (or, it is submitted, both) to place evidence before
him. Again, notwithstanding remarks to the contrary in S v Dlamini [21] (in the context of s 60(11) of the Act), it is
submitted that 'evidence' which the court requires to be 'adduced' may consist of oral evidence by any person who could
relevantly contribute to the resolution of the factual dispute (including the investigating officer), documentary evidence
and/or evidence on affidavit.
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It may, of course, be extremely difficult for an accused person to adduce the necessary evidence in a given case if he has
not had sight of the case which the prosecution has built against him and which, even at the bail stage, he may be required
to meet. Section 60(14) of the Act, [22] however, pertinently (and, it is submitted, perversely) denies the accused the right
of access to such information. The sub-section provides as follows:
Notw ithstanding anything to the contrary contained in any law , no accused shall, for the purposes of bail proceedings, have access to
any information, record or document relating to the offence in question, w hich is contained in, or forms part of, a police docket,
including any information, record or document w hich is held by any police official charged w ith the investigation in question, unless the
prosecutor otherw ise directs. . . .
It should be noted, however, that such denial of access only relates to information, records or documents relating to the
offence in question, and which is contained in, or forms part of, a police docket. More often than not, prosecutors will
refuse access to information as a matter of course or policy, without applying their minds to the need to withhold access or,
indeed, the greater interests of justice. What is often overlooked is the fact that information or documents requested by an
accused person, while having a bearing on the bail application and being potentially helpful to the accused, do not moreover
reside in the docket (or do not relate to the offence in question, but to some other offence which may incidentally have been
brought up by the prosecution during the course of the bail hearing). Such extraneous documents are manifestly not
protected by s 60(14) of the Act, and access to them must be given to the accused. This will frequently enable the accused
to adduce the evidence, which he is required to do in terms of s 60(2)(c) of the Act.
In addition, it is important to note that there is no absolute or 'blanket' prohibition contained in s 60(14): the section
does no more than deny the accused an entitlement to the contents of the police docket. In view of its restrictive approach
to the accused's rights in terms of the Act (and more particularly s 60(11)), it is perhaps not surprising that the
Constitutional Court in S v Dlamini [23] sought to clothe this somewhat unnecessary provision with respectability by holding
that a distinction needed to be observed between a 'fair trial' (in respect of which the court had held a 'blanket docket
privilege' to be unconstitutional) [24] and a 'fair bail hearing', [25] and that denial of the contents of the docket was a
constitutionally acceptable norm.
[26]
The prosecutor has a discretion to discover those contents and, it is submitted, it is not an unfettered discretion, [26] but
rather one that may be overruled by the court if unreasonably or groundlessly exercised against the accused. [27] It must be
borne in mind that at the heart of the matter lie the provisions of s 60(11), which
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cast a burden on the accused only if he has been given 'a reasonable opportunity' to adduce evidence. Such opportunity
encompasses not merely an indulgence to call witnesses or to produce documents, but also the ability to present evidence
meaningfully and not in a vacuum devoid of information, for usually the only information available to the accused when he is
called upon to present his case—before the state presents its own—will be the scant contents of the charge sheet. Thus, in
S v Green [28] the SCA held the following:
It is clear from s 60(10) that the court's function in a bail application is intended to be more proactive than in normal criminal
proceedings. As it w as put in the Dlamini decision (at para [11]), 'a bail hearing is a unique judicial function' and 'the inquisitorial
pow ers of the presiding officer are greater'. On a proper consideration of the case on w hich the State relied, any reasonable court
must have concluded that it lacked reliable and important information necessary to reach a decision, notw ithstanding that such
information w as apparently readily available. In such circumstances the court has no discretion but to invoke s 60(3). In my view , the
magistrate should, instead of refusing bail w ithout more, have ordered the State to grant the defence access to the video tapes and
any statements made by the police fingerprint experts, linking the fingerprints of either of the appellants w ith the crime, w ith the
decision on w hether or not to grant bail to be made thereafter.
And in S v Mauk, [29] Snyders J (as she then was) made it clear how the lack of discovery may hamper an accused person's
exercise of his right to bail:
The fact that an excessive onus had been placed on the applicant, that it w as held that he had not discharged the onus, despite the
absence of countervailing evidence, and the fact that the applicant had not been given a reasonable opportunity (to access) the
information in the docket, in this case had the practical effect that for the applicant bail became illusory. (My translation)
7.5 Postponement of hearing for lack of information: ss 60(2)(a) and 50(6)(d)

A reading together of ss 50(3) and 60(2)(a) of the Act, which provides that, in bail proceedings, the court 'may postpone
any such proceedings as contemplated in s 50(3)', leads one to an examination of s 50(6), to which the latter sub-section is
subjected. Of particular relevance within the context under discussion are the provisions of s 50(6)(d)(i), which read as
follows:
The low er court before w hich a person is brought in terms of this sub-section, may postpone any bail proceedings or bail application
to any date or court, for a period not exceeding seven days at a time, on the terms w hich the court may deem proper and w hich are
not inconsistent w ith any provision of this Act, if—
(i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail
application. . . .
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Thus, if a court seized of a bail application wishes informally to gather information as contemplated by s 60(2)(b), or feels
itself unable to decide disputed matters without recourse to further formal evidence as contemplated in s 60(2)(c), it may
postpone the bail hearing in order for such information or evidence to be procured and placed before it. Clearly in
recognition of the inherent urgency of bail matters, the sub-section permits a court to postpone a bail hearing for no longer
than seven days at a time, although this seven-day period may be renewed successively provided, it is submitted, that to
do so would be reasonable and just in the circumstances. The same considerations would apply where the court considers a
postponement to enable the state to procure material evidence or to 'perform the functions referred to in section 37', [30]
where the matter is to be referred to the attorney-general for the issue of a written confirmation referred to in s
60(11A)(a), [31] where the bail application needs to be referred to a regional court, [32] or where it appears to the court to
be necessary in the interests of justice to do so. [33] It is of some significance that the possibilities envisaged by s 50(6)(d),
while relevant to one or other situation which may arise, are ultimately subject to s 50(6)(d)(v), which gives the magistrate a
discretion.
In S v Block, [34] an urgent review of a magistrate's granting of a postponement of a bail application for the presentation
of further information, Majiedt J remarked that, as dominus litis, the state has the prerogative to invoke the provisions of s
50(6)(d)(v). [35] The learned judge also made the following observation:
It is striking that both s 35(1)(f) of the Constitution and s 50(6)(d)(v) of the Act contain the 'interests of justice' criterion. W hat must
be determined is w hether, in exercising his discretion to conclude that the interests of justice w arrant a postponement, the
magistrate's decision is review able. The 'interests of justice' is a very w ide concept. In the context of bail, as set out in s 35(1)(f) of
the Constitution, it is of some importance that this w ording has replaced the w ording of s 25 of the interim Constitution of 'unless the
interests of justice require otherw ise'. It has the effect of w eakening the position of an arrested person and of fettering the right to
be released on bail.
In Majali [36] the magistrate had granted an application by the state for a postponement of the bail application to verify
information regarding the accused's possible profile of pending cases in other jurisdictions. The application for a
postponement having been unsuccessfully opposed by the accused, he resorted to an urgent application for bail in the High
Court. The court correctly held that the High Court's inherent jurisdiction included the exercise of
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supervisory control over lower court proceedings, and the power to exercise such control by intervening in uncompleted
lower court proceedings. It is submitted, however, that in granting bail the court went too far, considering the unremarkable
facts and limited prejudice that the accused would suffer as a result of the postponement. [37] The High Court in effect
usurped the function of the lower court and, it is submitted, was not justified in intervening and hearing the matter as a
court of first instance. It must, however, be acknowledged that the learned judge's reasoning that the courts are enjoined
to develop the law in accordance with the spirit of the Constitution was admirably activist in the circumstances, and is to be
commended.
7.6 Court requiring further information or evidence: s 60(3)

It is obvious from the several references in s 60 of the Act to measures which may be adopted in order for sufficient
information or evidence to be placed before a court presiding over a bail hearing, that the legislature placed a premium on
bail decisions being taken only by well-informed courts. As with s 60(2)(b) and (c) and s 50(6)(d)(i) of the Act, s 60(3)
reiterates the requirement of adequate information upon which a bail decision should be based. The sub-section reads as
follows:
If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain
important information to reach a decision on the bail application, the presiding officer shall order that such information or evidence be
placed before the court. (Emphasis added.)
It will be seen that the sub-section is couched in peremptory terms, thus raising the spectre of a court not only being
entitled to, but being enjoined to, act pro-actively and even inquisitorially. [38] While the sub-section may appear to
introduce an inquisitorial element, it would be overstating a court's power or procedure to describe it as 'inquisitorial': the
procedure remains firmly adversarial notwithstanding the ostensible introduction of an inquisitorial element. [39] The position
is in fact no different from that which pertains to criminal trials, where a court is entitled to call and recall witnesses and is in
fact required to do so should it be in the interests of justice. [40] In essence, neither the law nor the Constitution requires
that justice should be dispensed hastily and without reflection; in point of fact, the interests of justice and fairness to both
parties in adversarial proceedings require that sound judgment should not be sacrificed on the altar of a speedy conclusion.
Thus, in Magistrate, Stutterheim v Mashiya [41] the magistrate had postponed a bail application at the conclusion of
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the evidence, in order to consider the evidence and his judgment. In challenging the ruling, the accused sought and
obtained a High Court order compelling the magistrate to give judgment within a certain specified period. In an appeal
brought by the magistrate before five judges of the Supreme Court of Appeal, Cameron JA said the following:
[14] The higher Courts, however, have emphasised repeatedly that the power to intervene in unconcluded proceedings in lower courts will
be exercised only in cases of great rarity—where grave injustice threatens, and where intervention is necessary to attain justice. The same
approach has been follow ed under the Constitution. At the same time, although the cases in w hich intervention has actually occurred
are uncommon, this Court has refused to define or limit the circumstances in w hich intervention w ould be justified. The categories
remain open.
[15] A High Court challenge to a magistrate's decision to postpone judgment in a bail application is in this sense unprecedented. But
in principle it falls w ell w ithin the jurisdiction, and it cannot be doubted that the pow er to intervene in a suitable case exists. I did not
understand counsel for the magistrate to contest this. W hat he put in issue w ere the terms of the order, and the justification for its
being issued w hen it w as. . . .
[16] During argument there w as, moreover, speculation about possible reasons for the postponement and the magistrate's
persistence in it. These embraced not only his personal circumstances (might he have had a medical condition requiring hospitalisation
for a w eek?) but his professional position (w as there a pile of outstanding judgments he preferred to surmount first?). It is not
necessary to dw ell on these possibilities. It is evident that finalising an application for bail is always a matter of urgency. Though the
accused may not be entitled to be released—since the Constitution permits bail only if the interests of justice permit—he or she is certainly
entitled at first instance to a prompt decision one way or the other. And if bail is refused, the decision can be appealed. The right to a prompt
decision is thus a procedural right independent of whether the right to liberty actually entitles the accused to bail.
[17] Nevertheless, it is equally obvious that conscientious determination of bail applications—applying the 'good judgment' they
require—might demand reflection: overnight, or conceivably even longer. It is not desirable to try to lay dow n any general rule. Nor
does the case require us to do so. It is not necessary to decide w hether, given the proactive duties imposed on magistrates during
bail hearings, an eight- or nine-day postponement could ever find justification, particularly w hen a postponement under s 50(6)(d) of
the Criminal Procedure Act has already been refused, and w hen evidence and argument are complete. Nor is it necessary to decide
w hether in this case—w hich Pillay J described as 'straightforw ard', and w hich the Full Bench, endorsing the attitude of the DPP,
disposed of as such—a postponement of that length could possibly have been w arranted.
[18] No final view is necessary because I shall assume in favour of the respondent that the circumstances at the time of Pillay J's
order justified and demanded a prompt hearing and decision about the respondent's entitlement to bail.
[19] Even on this assumption, this particular order should not have been granted. The short reason is not that the order w as
intrinsically incompetent, as counsel for the magistrate contended. It is that no case w as made out before Pillay J for subjecting the
magistrate to the undignifying prescriptions as to time that the order contained. In reaching this conclusion I bear in mind that it is, of
course, no indignity for a judicial officer to have a ruling reversed or overturned. All magistrates are subject to review and all judicial
officers (bar those in the highest Courts) are subject to correction on appeal. (Emphasis added.)
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7.7 Procedure in renewed applications

Once a court has refused bail, it is not, of course, precluded from hearing a renewed application, provided that the applicant
for bail shows the existence of new facts or changed circumstances. Thus, in S v Acheson [42] Mahomed AJ (as he then was)
said the following:
[The Attorney-General] also submitted that this Court had previously dismissed the appeal against the refusal of bail by the
magistrate.
I am unable to agree w ith the suggestion that I am precluded from considering bail for the accused, merely because the accused
w as previously unsuccessful in this Court.
Each application for bail must be considered in the light of the circumstances w hich appear at the time w hen the application is
made. A Judge hearing a new application is entitled, and indeed obliged, to have regard to all the circumstances w hich impact on the
issue w hen the new application is heard.
It is evident from this quotation that it is not only the new matter which is to be considered by a court hearing a
subsequent bail application, but the entire body of evidence and circumstances 'which impact on the issue when the new
application is heard'; and this would oblige the court to have regard to the prior evidence and information which may have
been placed before it. While sounding a caveat, the court in S v Vermaas [43] nevertheless reiterated that the S v Acheson
position also applied in this country:
Obviously an accused cannot be allow ed to repeat the same application for bail based on the same facts w eek after w eek. It w ould
be an abuse of the proceedings. Should there be nothing new to be said the application should not be repeated and the court w ill
not entertain it. But it is a non sequitur to argue on that basis that w here there is some new matter the w hole application is not open
for reconsideration but only the new facts. I frankly cannot see how this can be done. Once the application is entertained the court
should consider all facts before it, new and old, and on the totality come to a conclusion.
This view, expressed in S v Vermaas, was endorsed by Comrie J in S v Mohammed. [44] Indeed, it seems logical that any
renewed application based on new facts or changed circumstances should only be able to be properly judged with reference
to those facts and circumstances which were placed before a court in the first instance. [45] There can of course be no
numerus clausus as to the nature of new facts or changed circumstances that may legitimately warrant the grant of bail
previously refused. The newly discovered evidence of a witness who may prove the accused's innocence, as was the case in
S v Mohammed, is one example. In Acheson circumstances had changed, in that seven months after the accused's arrest,
and the accused having been indicted in the High Court, the state sought a further postponement of the trial. Before
dealing with the matter of renewed bail, the court, mindful of the accused's status as an awaiting-trial prisoner, considered
the state's application:
Page 74
An adjournment of a criminal trial is not to be had for the asking. It must be motivated in terms of the Criminal Procedure Act on the
grounds that it w ould be necessary or expedient to do so . . . An adjournment of a criminal trial necessarily involves delay, and in the
case of S v Geritis 1966 (1) SA 753 (W ) at 754C-F, Vieyra J stated that in the exercise of the [Court's] discretion to adjourn
proceedings tw o principles must be borne in mind:
'The one is that it is in the interests of society and accordingly of the State that guilty men should be duly convicted and not
escape by reason of any oversight or mistake w hich can be remedied. The other, no less valid, is that an accused person,
deemed to be innocent, is entitled, once indicted, to be tried w ith expedition.' [46]
. . . But a 'mistake' or an 'oversight' is not a sine qua non. There may have been no 'mistake' or 'oversight' at all. . . . [47]
[A] factor w hich has also influenced me in the exercise of my discretion to give a short adjournment has been the consideration that
any prejudice caused to the accused by a short postponement for this limited purpose w ould substantially be mitigated if he w as
released on bail in the interim, if this could properly be allow ed in all the circumstances. [48]
In granting bail on the strength of such changed circumstances, the court said:
More than seven months have now elapsed since the accused w as first taken into custody. The Court w hich heard the previous
application w as not and could not be aw are that the trial w ould not commence on 18 April 1990 and that a further adjournment
w ould be sought by the State. Moreover, it is no fault of the accused that the trial cannot proceed. He is w illing and able to continue
w ith his defence, having engaged eminent senior and junior counsel. [49]
It is important to note that changed circumstances may not have the same effect or influence on the question of bail in
every case. Thus, whereas an unforeseen 'short' delay in commencing the trial in S v Acheson was considered to be
sufficient reason to grant a renewed application for bail, a delay was seen as inadequate reason to depart from the earlier
refusal of bail (in an earlier High Court appeal) in Ali: [50]
[16] . . . In the absence of proof that the State has acted mala fide, delays caused by decisions of the prosecution are not in
themselves a reason for finding that arrested persons are entitled to bail. I cannot therefore agree that the magistrate misdirected
himself in this regard.
[17] The same can be said of the appellant's averment that the magistrate misdirected himself by alluding to the fact that the
appellant's co-accused had absconded after he w as granted bail. W hile it w ould certainly be w rong to attribute intentions to the
appellant on the basis of the conduct of another, I am not persuaded that the magistrate reasoned that the appellant should be
denied bail merely because his co-accused failed to appear in court on 29 March 2010. The magistrate's remark about Ul-Hak's
'disappearance' w as merely illustrative. The illustration w as apt. The disappearance of a co-accused in circumstances such as the
present is indeed a w arning of the risk inherent in granting the appellant bail.
[18] The appellant has already spent considerable time in custody as an aw aiting trial prisoner. How ever, on the evidence before me
I am unable to find that the passage of time has
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diminished the likelihood of the appellant's flight or of his making further endeavours to interfere w ith evidence, to w hich Eksteen AJ
referred. The magistrate cannot accordingly be criticised for reaching the same conclusion in the bail application presently under
appeal.
[19] This leaves the appellant's personal circumstances. No evidence w as led in this regard in the third bail application. The
submission in that regard w as simply that the situation outlined in the appellant's evidence in the second bail application w ould
inevitably be aggravated by the delay resulting from the DDPP's decision (to w ithdraw the charge and consolidate it w ith other
charges pending in the High Court). . . .
[20] Financial loss is an inevitable consequence of the incarceration of any gainfully employed person. In the present case, the
evidence does not go so far as to prove that, straitened as their circumstances may be, the appellant's dependants w ill starve if he is
not released to fend for them. I am prepared to accept that the withdrawal of the case in the magistrates' court will prolong and even
exacerbate the privations of the appellant's dependants. But in the absence of proof of bad faith on the part of the prosecution or of any
fresh evidence relating to the appellant's personal circumstances, I do not agree with the submission that the magistrate erred by failing to
change his earlier finding that the appellant's personal circumstances were outweighed by the possibility that he might attempt to evade
trial or tamper with evidence. (Emphasis added.)
As may be seen, in Ali the court was concerned that a proper balancing of the respective interests of state and accused had
to be considered. It may be debatable whether mala fides in the state's application for a postponement is necessarily an
essential consideration: after all, even an application made in perfectly good faith, if unsubstantiated, would lack cause for
granting a postponement. [51] Equally, a manoeuvre by the state to consolidate trials may be perfectly proper and in the
interests of a smoother trial, but may cause the length of the delay to become inordinate in the absence of an order
releasing the accused on bail. That is precisely what occurred in S v Acheson, [52] where the court held that even a short
further delay outweighed the grave bail risks involved where a foreign national stood accused of the assassination of a
prominent local advocate and political activist. In S v Hitschmann, [53] the court considered that a short delay (similar to
that in S v Acheson) occasioned by the state's application for one, while it was a 'changed circumstance', was of insufficient
weight to constitute a circumstance warranting the grant of bail where the state's case in a serious matter was
'overwhelming': [54]
Follow ing his arrest and incarceration the applicant subsequently applied for bail before Chitakunye J w ho dismissed the application
on 23 March 2006. . . . The applicant has now lodged a fresh bail application based on changed circumstances. It is trite that w here
bail has been previously refused by the court the same court can grant bail if, and only if, there are changed circumstances
w arranting the granting of bail.
Relying on the case of S v Stouyannides 1992 (2) ZLR 126 (S) counsel for the applicant argued strongly that the mere passage of
time coupled w ith the State's failure to strengthen its case amounts to changed circumstances w arranting the court granting the
accused bail.
The rationale in the Stouyannides case supra is captured in the headnote w hich reads: 'Held, that the amount of time w hich had
elapsed had to be considered together w ith the crucial
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factor of the lack of progress in the investigations in this case. The Attorney-General acts at his peril if he fails to put before the court
specific facts w hich show that the State case has been strengthened after a long time.'
On a proper reading of the above sentiments it is clear that it is not the mere passage of time which constitutes changed
circumstances warranting the granting of bail. It is the passage of some considerable time without progress in investigations.
In this case the period w hich has elapsed since the original refusal of bail is slightly over a month. Having regard to the seriousness
and complexity of the matter I am unable to say that there has been an inordinate delay in bringing the applicant to trial. (Emphasis
added.)
The competence of a renewed bail application, and the need for it before an appeal against the refusal of bail is heard
pursuant to the discovery of new facts or changed circumstances arising, appears from s 65(2) of the Act, which reads as
follows:
An appeal shall not lie in respect of new facts w hich arise or are discovered after the decision against w hich the appeal is brought,
unless such new facts are first placed before the magistrate or regional magistrate against w hose decision the appeal is brought and
such magistrate or regional magistrate gives a decision against the accused on such new facts.
In the absence of any prescribed procedure for renewed applications, it is evident that an applicant for bail may employ the
usual modes of presenting testimony, that is, by leading viva voce evidence, on affidavit and by the submission of
documentary and real evidence. In S v De Villiers [55] the following was said:
I attempted to research the procedure and legal position pertaining to new facts. In the short time at my disposal I could not find any
authorities. . . . The question arises w hat procedure an accused should follow in order to be able to bring such a renew ed application
before the magistrate or regional magistrate, based on new facts. In this particular case no facts w ere placed before the magistrate.
W hat took place here w as merely argument. The one new fact, w ithout reference to the others, w hich w as mentioned in argument, is
that there w ere originally several charges against the Appellants (eight to be precise) and that there is currently
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only one charge of murder and one of robbery pending against the Appellants in the High Court. This fact w as not placed before the
magistrate by w ay of common cause. . . . I am satisfied that in terms of s 65(2), w here an accused w ishes to bring a renew ed
application for bail based on new facts, the facts must actually be placed before the magistrate. Facts can be placed before a
magistrate in various w ays. They can be placed before a magistrate by means of a document that indicates that this is common cause
betw een State and defence; they may be placed before the magistrate by means of viva voce evidence. Those are not the only tw o
w ays, but are tw o of the w ays in w hich this can be done. Then the magistrate is called upon to decide whether or not these facts that
were placed before him or her are new facts, and next, if the magistrate finds that they are indeed new facts, then the magistrate may
consider the renewed bail application on the grounds of new facts and decide whether the new facts are of such a nature that bail ought to
be granted or not. (My translation; Emphasis added.)
This view met with approval (as did the views of Van Dijkhorst J in S v Vermaas [56] and Comrie J in S v Mohammed) [57] in
S v Petersen [58] where Van Zyl J held as follows:
[57] W hen, as in the present case, the accused relies on new facts w hich have come to the fore since the first, or previous, bail
application, the court must be satisfied, firstly, that such facts are indeed new and, secondly, that they are relevant for purposes of
the new bail application. They must not constitute simply a reshuffling of old evidence or an embroidering upon it. See S v De Villiers
1996 (2) SACR 122 (T) at 126e-f. The purpose of adducing new facts is not to address problems encountered in the previous
application or to fill gaps in the previously presented evidence.
[58] W here evidence w as available to the applicant at the time of the previous application but, for w hatever reason, w as not
revealed, it cannot be relied on in the later application as new evidence. See S v Le Roux en Andere 1995 (2) SACR 613 (W ) at 622a-b.
If the evidence is adjudged to be new and relevant, then it must be considered in conjunction w ith all the facts placed before the
court in previous applications, and not separately. See S v Vermaas 1996 (1) SACR 528 (T) at 531e-g; S v Mpofana 1998 (1) SACR 40
(Tk) at 44g-45a; S v Mohammed 1999 (2) SACR 507 (C) ([1999] 4 All SA 533) at 511a-d.
The approach adopted in S v De Villiers differs from that in S v Vermaas, where the court held that s 65(2) of the Act did
not deal with renewed applications for bail, but merely precluded the right of appeal on new facts which were not before the
court of first instance without the referral of the new matter to that court. [59] It is submitted, however, that in practical
terms nothing turns on the distinction: a renewed application for bail should be made before the court of first instance; and
an appeal against a refusal of bail does not lie until such time as any new facts relied upon have been placed before such
court. [60]
There is nothing to preclude an accused person from bringing a renewed application for bail, not on new facts as such,
but pursuant to the prior withdrawal of bail owing to a breach of conditions. [61]
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7.8 The provisions of s 60(9) and s 60(10)

It is clear from the provisions of s 60(9) and s 60(10) of the Act that a court has the duty to weigh up the personal
interests of the accused against the interests of justice in both opposed and unopposed bail applications. This, it is
submitted, implies that the criterion of the 'interests of justice' is not an absolute one that would, for instance, once met,
necessarily relieve the state of its burden of proof in terms of s 60(1)(a) of the Act: once the state has succeeded in
showing that, on a balance of probabilities, the interests of justice will be best served by the accused's further detention, it
is incumbent upon the court to bring the provisions of s 60(9) into the equation before it makes its final adjudication.
Section 60(9) of the Act reads as follows:
In considering the question in sub-section (4) the court shall decide the matter by w eighing the interests of justice against the right
of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she w ere to be
detained in custody, taking into account, w here applicable, the follow ing factors, namely—
(a) the period for w hich the accused has already been in custody since his or her arrest;
(b) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused w ith regard to such
delay;
(d) any financial loss w hich the accused may suffer ow ing to his or her detention;
(e) any impediment to the preparation of the accused's defence or any delay in obtaining legal representation w hich may be brought
about by the detention of the accused;
(f) the state of health of the accused; or
(g) any other factor w hich in the opinion of the court should be taken into account.
It will be noted that the legislature has seen fit to make this a mandatory provision which must be applied by a court
considering the interests of justice in terms of s 60(4) of the Act. Section 60(10) goes one step further: even where the
state does not oppose bail, a duty is imposed upon the court 'to weigh up the personal interests of the accused against the
interests of justice'. This means that bail may never be there for the mere asking, and that a court should always, in
adjudicating, strike a balance between the interests of justice and the interests of the accused as envisaged in s 60(9) of
the Act. Much of the subject matter of s 60(9) may be traced back to the judgment in S v Acheson. [62]
7.9 The analytical models and the incidence of the onus

It is generally accepted that where the onus is upon the accused to convince the court upon a balance of probability that it
should exercise its discretion in favour of granting bail, [63] theoretically speaking, two possible approaches may then be
followed in the adjudication of the application. In terms of the due process model the accused should be released on bail
unless there are sufficient indications that he will not stand trial: 'A person accused of crime is entitled to
Page 79
remain free until judged guilty so long as his freedom does not threaten to subvert the orderly processes of criminal
[64]
justice.' [64] In the crime control model there is a subtle difference in approach, namely that the accused should be granted
bail only if there are sufficient indications that he will stand trial. The line of reasoning required by the crime control model is
as follows: if the accused does go free there is a risk that he will not appear for trial and therefore positive indications that
he will stand trial are required. In this area of conflict between the two models, the incidence of the onus and the elements
or factors to be proved assume a decisive role.
It was pointed out earlier that our courts have repeatedly stated that a court should always grant bail where possible and
should lean in favour of the liberty of the subject provided that the interests of justice will not be prejudiced. [65] These
statements raise the expectation that the fundamental approach is one of due process, that there will have to be good
reasons why pre-trial release should not take place and, further, that these reasons will have to be proved by the state,
that is, the party who wishes to persuade the court not to lean in favour of the liberty of the accused. But the position in
our law in the pre-Constitution era was that the onus was placed on the accused (in his capacity as applicant) [66] to
persuade the court to exercise its discretion in favour of granting bail and, in discharging this onus, to show that the
interests of justice would not be prejudiced. The accused thus had to show that it was likely that he would stand his trial
and that he would not tamper with state witnesses or otherwise interfere with the administration of justice or the
investigation of the case against him. [67]
It is submitted that by placing the onus upon the accused our courts have—perhaps inadvertently—resorted to a line of
reasoning which is more in accordance with the crime control than the due process model. Our courts have viewed the bail
application as just another application in which the applicant had to show that he was entitled to the requested relief. This
approach is certainly sound in respect of civil law but cannot be accommodated in a criminal justice system which purports
to uphold the basic principle that an accused is innocent until proven guilty, and which requires that in principle the state
should in the criminal process shoulder the entire burden of proof. The question of fundamental principles of criminal justice
transcending the procedural principle of convenience, namely that he who seeks relief bears the onus, was never properly
considered by our courts in the pre-Constitution era.
It is submitted that historically our courts have favoured the crime control model, not as the result of some deliberate
reasoning that the vast majority of
Page 80
people charged with crime are factually guilty, but because they have relied on technical procedural principles (an applicant
bears the onus) [68] without considering the broader practical and theoretical consequences, namely that to place an onus
upon the accused might amount to a negation of the criminal justice principles that the presumption of innocence prevails
and that there should be no interference with the liberty of the subject unless good cause is shown. And in this context the
state ought to show good cause. It is further submitted that if the onus were on the state, it might spur the state to do a
complete and independent investigation as regards the question whether the accused would stand his trial.
Our post-Constitutional jurisprudence on the topic of onus has been anything but consistent and confidence-inspiring. As
will be seen in the following paragraphs, approaches have ranged from bail hearings being wholly inquisitorial and therefore
not susceptible to any onus, [69] to an onus resting on the accused, [70] to the state bearing an onus in the full criminal
justice sense. [71] Both analytical models have been supported in the process.
7.10 The interim Constitution and the onus

Many of the authorities cited in this work, and quoted in our courts, hail from the era of the interim Constitution. For that
reason references to its provisions remain essential [72] . In terms of s 25(2)(d) of the interim Constitution every arrested
person had the right 'to be released with or without bail, unless the interests of justice require otherwise'. In order to
understand the objective and meaning of this section, it will be instructive to deal more fully with the pre-constitutional era
referred to above. [73] In the early part of the last century the criminal procedure statutes made no reference to onus; [74]
and the courts acted in accordance with the principle that bail could be granted in all cases, save that 'great caution is
always exercised'. [75] Similarly, although murder and treason were not bailable offences, a general right to bail appeared to
exist in terms of the previous Criminal Procedure Act [76] —but again without any direct reference to onus. Again, the
current Act, before its amendments in 1995 and 1997, did not expressly prescribe the incidence of the onus in bail
applications. Nevertheless, our courts consistently (with few exceptions) held that 'the onus was on the accused to
establish his right to liberty in the face of the issues raised in any particular application—that he would stand his trial, that
he would not interfere with witnesses or tamper with evidence and generally that the granting
Page 81
of bail was in the interests of justice'. [77] The line of cases establishing and supporting this principle seems endless, [78] and
is distinguished by the decision in R v Mtatsala, [79] which purported to place an even heavier burden upon an accused
person charged with murder.
Against this ostensibly general acceptance that the onus rested on the applicant in the pre-constitutional era, came the
aforementioned provisions of s 25(2)(d) of the interim Constitution. In a judgment which is supported as much for its
recognition of democratic values and the spirit in which legislative provisions ought to be interpreted in a constitutional
democracy as for its conclusion, Van Blerk AJ in Magano v District Magistrate, Johannesburg [80] held as follows: [81]
The provisions establishing fundamental guarantees in Chapter 3 of the [interim] Constitution are couched in broad and w ide
language. This is no doubt to afford flexibility to the Constitution. The result thereof is to impose upon the Constitutional Court and
this Court the duty to determine the precise limits of the guarantees afforded under the Constitution to citizens and other persons. In
doing so, it seems to me that this Court should steer a course betw een the Scylla of inflexibility, on the one hand, and the Charybdis
of uncertainty, on the other. . . .
In my view , s 35(3) of the Constitution enjoins a court, if the language of s 25(2)(d) allow s it to do so, to uphold the rights of an
accused person to freedom, at least until there is a finding of a court that establishes his guilt. The language of the section does not
merely give to an accused person the right to apply for bail, w hich he has under the Criminal Procedure Act 51 of 1977, but the right
'to be released from detention w ith or w ithout bail'. That right may only be denied an accused person w here 'the interests of justice
require otherw ise'. The use of the w ord 'unless' adds w eight to the argument that the onus rests upon the State to establish that
the interests of justice require the continued detention of an accused. . . . For these reasons I am of the view that an accused person
does not bear the onus to prove that he should be released from detention, but that the State is required to show that he should be refused
such bail because the interests of justice require it. (Emphasis added.)
This judgment was severely criticised by Leveson J in S v Mbele and Another: [82]
In interpreting a statutory provision the court is to have regard to 'the spirit, purport and objects of this Chapter [Chapter 3 of the
interim Constitution]'. I consider that it has alw ays been the law that w hen interpreting a section that must be done in the context
and against the background of the statute as a w hole. I am inclined to the view that this section w as enacted w ith reference to other
law s and not the Constitution Act. Secondly the learned Judge said that the use of the w ord 'unless' added w eight to the argument
that the onus rested upon the State. I am unable to perceive any mystical significance in the w ord. Save for s 35, the w hole of
Chapter 3 (in w hich s 25 resides) deals w ith the rights of the individual and only s 35 contains adjectival provisions. There is nothing
in s 25(2)(d) w hich in my opinion can be described as adjectival . . . I consider [Magano] to be w rongly decided.
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The views of Stegmann J in S v Mbele and Another [83] are even more to the point:
As I understand the intention of that fundamental right [that is, the right to bail] it is to ensure that, w hile the interim Constitution
stands, every accused person in detention w ill have the right to approach a court to determine, in accordance with the laws relating to
bail as they existed when the Constitution was enacted, or as they may be varied later . . ., w hether, pending the trial, the interests of
justice w ill best be served by the continued detention, or by the release of the accused. W hat is aimed at is the truncation of the
pow ers of the Legislature ever again to take aw ay the liberty remaining to an accused and detained person to approach a court of
law to adjudicate upon the best interests of justice pending his trial, and never again to permit the Legislature or the Executive to
take aw ay or truncate the jurisdiction of the courts to adjudicate on that question. (Emphasis added.)
This perceived function of s 25(2)(d) of the interim Constitution, namely to truncate the previously sovereign (and often
Draconian) powers of the legislature by outlawing for the future any offensive legislation such as s 30 of the Internal
Security Act 74 of 1982 also, according to the learned judge, guaranteed 'the fundamental right of the individual to the
benefits of the ordinary law of bail as administered by the courts', a fact which 'seems to have been overlooked'.
Stegmann J went on pertinently to discuss the question of onus in bail applications, and came to the conclusion that s
25(2)(d) of the interim Constitution did not deal with the question of onus at all:
Therefore, I understand s 25(2)(d) to mean, by implication, that every person arrested for the alleged commission of an offence has a
fundamental procedural right to go before a court of law to seek his release w ith or w ithout bail; and that the related substantive
fundamental right w hich he enjoys is the right to have a court w eigh up all of the relevant interests of justice, including those w hich
favour his release pending the trial . . . , and those w hich may be adverse to his release pending the trial . . . ; and that he has a
fundamental right to be released w ith or w ithout bail unless, in the particular circumstances of the case, the interests of justice
adverse to his release outw eigh the interests of justice that favour his release.
Read in this w ay, as I think it must be, s 25(2)(d) has nothing to do w ith the determination of the incidence of the onus of proof, or
the onus of persuasion. [84] . . .
W hat emerges from this discussion is the important point that s 25(2)(d) of the interim Constitution does not deal w ith the question
of onus in a bail application at all. There is therefore no question of any such conflict betw een s 25(2)(d) of the interim Constitution
and the new s 60(11) of Act 51 of 1977. . . . This w ould remain the position even if Ellish's case [85] w ere one day to be reconsidered.
On any basis, s 25(2)(d) of the interim Constitution does not deal w ith the question of onus at all, expressly or by implication. [86]
Notwithstanding his remarks that it was logical and reasonable that the state should commence the leading of evidence in a
bail application, by virtue of the fact that it alleges that the interests of justice were at issue, Eloff JP in
Page 83
Prokureur-Generaal van die WPA v Van Heerden [87] nevertheless declined to hold that an onus in the usual sense of the
word (as opposed to a burden of rebuttal) applied to bail proceedings. The learned judge held that, in contradistinction to
the situation in criminal proceedings, the nature of the burden of rebuttal was to be determined through the application of
considerations of practicability and fairness. [88] This approach was essentially endorsed by the majority judgment in Ellish v
Prokureur-Generaal, WPA. [89] In a considered judgment in Prokureur-Generaal, Vrystaat v Ramokhosi [90] Edeling J did not
follow the approach in the S v Mbele and Another case and came to the following conclusion: [91]
W ith respect, in my view it follow s that any person or entity desiring the continued detention of the accused, and accordingly the
refusal of bail, must not only raise such factor or factors, but also cannot succeed if the court does not or cannot find that the
interests of justice require further detention in consequence of the existence of such factor(s). In that sense, therefore, a burden of
proof indeed rests on the State.
In opting for this view, the learned judge expressed his support for a dictum of Van Schalkwyk J in Ellish v Prokureur-
Generaal, WPA [92] as well as for the minority judgment of Southwood J who said in the same case: [93]
The fact that bail proceedings are sui generis and inquisitorial in nature does not affect the fact that at the end of the enquiry the
court hearing the bail proceedings may be left in doubt as to w hether the evidence justifies the refusal to release the arrested
person or not. . . . In that context the use of an onus to resolve the issue is both practical and juridically sound. By onus I mean onus
in its true and original sense, 'namely, the duty w hich is cast on the particular litigant, in order to be successful, of finally satisfying the
Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce
evidence to combat a prima facie case made by his opponent' (Pillay v Krishna 1946 AD 946 at 952-3).
It is submitted that Southwood J's approach must be the correct one: after all, the adjudication of a bail application that is
uncomplicated by reverse-onus provisions may easily (and frequently does) depend upon where the onus falls. In S v
Tshabalala [94] this rather obvious fact was recognised without difficulty by Comrie J, who said the following in a well-
reasoned judgment:
There is authority for the view that there is no such thing as an onus or burden of proof in bail proceedings. See the judgments of Van
Schalkw yk J and Mynhardt J in Ellish en Andere v Prokureur-Generaal, WPA 1994 (2) SACR 579 (W ). There is also authority for the
contrary
Page 84
view . See the judgment of Southw ood J in Ellish's case, supra, and the judgments of Leveson J and Stegmann J in S v Mbele and
Another 1996 (1) SACR 212 (W ). See too: S v Vermaas 1996 (1) SACR 528 (T) at 530; S v Shezi 1996 (1) SACR 715 (T) at 717-18. I find
it difficult to avoid the conclusion that s 60 of the Criminal Procedure Act cast some kind of onus or burden of proof on the State or the
applicant for bail, as the case may be, especially in opposed matters (compare s 60(2)(c)). . . . Nonetheless, and leaving s 60(11) on one
side for the moment, s 60(1)(a) entitles an arrested person to be released on bail 'unless the court finds that it is in the interests of
justice that he or she be detained in custody. Section 60 goes on to furnish considerable guidance as to w hat is or is not to be
regarded as in the interests of justice. In particular, each of the four paragraphs contained in s 60(4) refer to a 'likelihood' that an
accused, if released on bail, w ill conduct him or herself in a particular w ay. In cases not governed by s 60(11), therefore, it seems to me
that there must be a practical burden on the State to adduce evidence or information going to show that such a 'likelihood' exists, and to do
so convincingly. (Emphasis added.)
The amendments to s 60 of the Act in 1995 included a new s 60(11), which reads as follows:
Notw ithstanding any provisions of this Act, w here an accused is charged w ith an offence referred to—
(a) in Schedule 5;
(b) in Schedule 1, w hich w as allegedly committed w hilst he or she w as released on bail in respect of a Schedule 1 offence,
the court shall order that the accused be detained in custody until he or she is dealt w ith in accordance w ith the law , unless the
accused, having been given a reasonable opportunity to do so, satisfies the court that the interests of justice do not require his or
her detention in custody.
While the various divisions of the High Court have vacillated with regard to the existence, nature and allocation of an onus in
ordinary bail applications (that is, those unaffected by the provisions of s 60(11)), there has been considerably more
uniformity in the interpretation of s 60(11). It may be safely said that the consensus of judicial opinion appears to be (and,
it is submitted, correctly so) that the sub-section saddles the accused with a burden. What exactly that burden should be,
however, has not attracted harmony from our courts. Thus, in Mbele [95] Leveson J held that, in cases governed by s
60(11), the applicant had the onus of satisfying the court on a preponderance of probabilities that the interests of justice
permitted the grant of bail. This view received support from Stegmann J who, however, preferred to call the burden an
'onus of persuasion'. [96] As was intimated above, a contrary view was taken in Prokureur-Generaal, Vrystaat v
Ramokhosi. [97]
In S v Vermaas [98] Van Dijkhorst J first dealt with the onus in ordinary bail applications, and then went on to express
himself as follows with regard to s 60(11): [99]
Page 85
The general rule set out in s 60(1)(a) is that the accused is entitled to be released on bail unless the court finds that it is in the
interests of justice that he be detained in custody. That wording, in my view, creates an onus. The onus rests upon him who asserts
that the accused should not be released, that is the State. In cases of doubt the accused goes free.
The converse is the case w here s 60(11) is applicable. . . . It is imperative, 'the court shall order the accused to be detained'. The
accused is called upon to satisfy the court that the interests of justice do not require his detention in custody. Clearer w ording cannot
be sought for an onus on the accused. (Emphasis added.)
A similar view was expressed in S v Shezi [100] by Els J and in S v Tshabalala, [101] where Comrie J observed as follows:
Section 60(11), on the other hand, reverses the position w hen the accused is charged w ith a schedule 5 offence or w ith certain
schedule 1 offences. The language is sufficiently plain . . . if that is not an onus of proof, then surely it is something very close thereto.
In the light of the aforegoing, it is accordingly submitted that, in the pre-constitutional era, our courts have placed the onus
on the accused in all bail applications; that in the era under the interim Constitution that onus was reversed and fell upon
the state in ordinary bail applications [102] and that, since the introduction of a new s 60 and more specifically s 60(11) of
the Act in 1995, the onus rested on the accused in those applications falling under the sub-section as it then stood. (As will
be seen below, the 1995 version of s 60(11) has since been incorporated in a new s 60(11)(b), which has created a whole
new conundrum as regards the nature and extent of the burden created by it.) [103]
7.11 The onus in s 60(1)(a) and the Bill of Rights

As was seen above, [104] a close correlation existed between the wording of s 25(2)(d) of the interim Constitution and the
due process model of criminal procedure. Thus, in terms of the principle of due process, an arrested person should as a
matter of policy be released on bail unless his detention was required by the interests of justice. Similarly, s 25(2)(d) of the
interim Constitution provided that every person arrested for the alleged commission of an offence shall have the right 'to be
released with or without bail, unless the interests of justice require otherwise'. This apparent constitutional leaning towards
due process was echoed in the 1995 revision of s 60(1) of the Act, which reads as follows:
(a) an accused w ho is in custody in respect of an offence shall . . . be entitled to be released on bail at any stage preceding his or
her conviction in respect of such offence, unless the court finds that it is in the interests of justice that he or she be detained in
custody. (Emphasis added.)
Page 86
Van Blerk AJ recognised the importance of the word 'unless' in Magano v District Magistrate, Johannesburg: [105]
The language of the section does not merely give to an accused person the right to apply for bail, w hich he has under the Criminal
Procedure Act 51 of 1977, but the right 'to be released from detention w ith or w ithout bail'. That right may only be denied an accused
person w here 'the interests of justice require otherw ise'. The use of the w ord 'unless' adds w eight to the argument that the onus
rests upon the State to establish that the interests of justice require the continued detention of an accused. [106]
At the time, Van Blerk AJ's judgment was criticised by Leveson J in S v Mbele and Another [107] who, in suggesting that
Magano had been wrongly decided, said the following:
Secondly the learned Judge states that the use of the w ord 'unless' added w eight to the argument that the onus rested upon the
State. I am unable to perceive any mystical significance in the w ord. [108]
The advent of the Constitution in 1996, however, meant the introduction of the present s 35(1)(f) in place of s 25(2)(d) of
the interim Constitution. Section 35(1)(f) of the Constitution reads as follows:
Everyone w ho is arrested for allegedly committing an offence has the right—
...
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions. (Emphasis added.)
The Constitutional Court in S v Dlamini, [109] not surprisingly, appeared to be mesmerised by this subtle change of wording,
and in effect held that the Constitution did not favour the liberty of the accused to the extent that the interim Constitution
had done: [110]
[38] The theoretical basis w as established by transplanting into s 60(1) [of the Act] the principle established by s 25(2)(d) of the
interim Constitution that every arrestee has the right 'to be released from detention . . . unless the interests of justice require
otherw ise'. The relevant part of the new s 60(1)(a) is a faithful reproduction: 'an accused . . . in custody . . . shall be entitled to be
released on bail . . . unless . . . it is in the interests of justice that he or she be detained. . . .' After the Constitution came into
operation and s 25(2)(d) w as replaced by s 35(1)(f), s 60(1)(a) w as not correspondingly amended. It therefore still echoes the former
provision, although a person's constitutional right to release from custody is now dependent on a finding that the interests of justice
permit it. Consequently, s 60(1)(a) favours liberty more than the minimum required by the Constitution.
Sarkin et al [111] rightly criticise this approach as
a very narrow interpretation that largely ignores both the common law presumption in favour of liberty and the w ider constitutional
protections of individual liberty contained in s 12 of the
Page 87
1996 Constitution. It reveals a restrictive approach to liberty rights that also shaped the Court's analysis of the challenges to the
specific restrictions introduced by the 1997 amendments. [112]
In S v Letaoana [113] the court appears not to have attached significance to the shift that is discernible when the wording of
s 25(2)(d) of the interim Constitution (and, of course, s 60(1)(a) of the Act) is compared to that of s 35(1)(f) of the Bill of
Rights, choosing instead to regard the provisions as 'similar, albeit not identical'. The court further elected not to enter the
debate concerning the incidence of the onus in bail applications, but rather to draw attention to the obligations placed upon
every court in terms of the Constitution:
Section 35(3) of the interim Constitution provided:
'In the interpretation of any law and the application and development of the common law and customary law , a court shall have
due regard to the spirit, purport and objects of this Chapter.'
Under the present Constitution, a similar provision is to be found in section 39(2) w hich provides:
'W hen interpreting any legislation, and w hen developing the common law or customary law , every court, tribunal or forum must
promote the spirit, purport, and objects of the Bill of Rights.'
It has been held by the Constitutional Court that the interpretive injunction contained in section 35(3) of the interim Constitution may
entail a reconsideration of prior decisions, including those of the Appellate Division handed dow n before the Constitution came into
operation. [114]
...
Section 39(2) of the present Constitution reflects an important change in the w ording from its forerunner in section 35(3) of the
interim Constitution. The latter required a court, w hen interpreting a statute, to have 'due regard' to the spirit, purport and objects of
the chapter on fundamental rights. Section 39(2), by contrast, provides that a court 'must promote' the spirit, purport and objects of
the Bill of Rights. To 'promote' in this context, means to further or advance. It means more than taking into proper account. Thus,
w hen interpreting section 60 of the Criminal Procedure Act a court is obliged to 'promote' the objects of the Bill of Rights. Both Ellish's
case (supra) and Mbele's case (supra) w ere decided w ith reference to the interim Constitution. Since then not only has the present
Constitution come into force but a considerable body of jurisprudence has been developed by the Constitutional Court. Although this
judgment does not necessitate any further development of the principles governing the grant of bail, every judge, including a single
judge of the High Court, is obliged to take full account of the Constitution in the light of the requirements of section 39(2). [115]
One would therefore expect our highest court (and since its inception our highest constitutional tribunal) to give effect to
the requirements of s 39(2) of the Constitution, whether by favourably allocating the onus to promote liberty,
Page 88
or otherwise. Remarkably, in a judgment replete with obiter dicta on the law relating to bail, the Constitutional Court in S v
Dlamini [116] did not see its way clear to elucidating or even commenting upon the question of onus.
It is submitted, however, that many decades of jurisprudence on the topic have shown that an onus indeed exists in bail
applications; and that, commensurate with the wording used by the legislature in the 1995 version of s 60(1)(a) of the Act,
such onus rested on the state to prove that the accused should indeed be detained in accordance with the interests of
justice. If regard is had to the statement made in S v Dlamini [117] to the effect that the 1995 version of s 60(1)(a) of the
Act 'favours liberty more than the minimum required by the Constitution', it is submitted that the correct approach to the
situation brought about by the tension between the wording of the latter section and s 35(1)(f) of the Constitution would
be this: where a statutory provision allows for the assertion of an individual's rights to a degree that falls short of that
prescribed by a constitutional provision, then the statutory provision would be unconstitutional and would yield to the
constitutional provision; and the individual would be entitled to the right as enshrined in the Constitution. Where, however,
a statutory provision, such as s 60(1)(a) of the Act, extends to an individual a right which is greater than that guaranteed
by the Constitution, the individual will be entitled to the greater right as it does not offend the minimum standard set by the
constitutional provision; and this approach moreover accords with the age-old principle that, where more than one
interpretation is possible, the one most favourable to liberty should be adopted. Thus, in terms of the 1995 version of s
60(1)(a), an arrested person who applied for bail would have been entitled to be released unless his further detention was
required in the interests of justice. The wording of s 60(4) of the Act unmistakably requires that the state should prove the
likelihood (probability) of the eventuality of one of the factors set out in sub-sections 60(4)(a)-(e) should the accused be
released on bail. Thus it has been forcefully stated in S v Swanepoel: [118]
From this it indubitably follow s that the magistrate cannot find that refusal of bail w ill be in the interests of justice on the mere
existence of the risk or possibility that one or more of the consequences [envisaged by s 60(4)] w ill materialise upon release. The
magistrate cannot grope around in the dark and speculate and guess in order to arrive at his decision. He must find that it w ill
probably materialise. If he cannot find that one or more of the consequences w ill probably materialise, he cannot find that the
detention of an accused w ould be in the
Page 89
interests of justice and the accused should be released. Accordingly, it is clear that the fundamental principle of the law relating to
bail is that bail ought to be granted save w here it is not in the interests of justice.
A corollary of this fact is that the state must bear the onus of proving that the further detention of the applicant for bail is
required in the interests of justice. A further reason for holding that the onus, in terms of s 60(1)(a) of the Act, rests upon
the state (if such be required) may be found in the fact that, in s 60(11), the onus is expressly shifted onto the accused
who applies for bail. This, it is submitted, would not have been deemed necessary by the legislature if the onus had been on
the accused all along. Also of interest in this regard are the views of Chaskalson et al:
In my view there is no reason w hy s 25(2)(d) [of the interim Constitution] should not be interpreted purposively and in favour of the
individual arrested accused w ho applies for release on bail pending his trial or further investigation. As w as stated by Southw ood J in
Ellish en Andere v Prokureur-Generaal, W PA, there is no reason w hy the onus should not rest on the state. That approach w ill not bring
about a situation w here applicants for bail w ho should remain in custody in order to protect society w ould be released on bail. The
fact that some individual arrested persons have to be kept in custody in order to protect the community against the further
commission of offences should not bring about a situation w here the vast majority of arrested persons should not have the full
benefit of s 25(2)(d) and the right therein contained to be released from detention w ith bail unless the interests of justice require
otherw ise. [119]
The further amendment of s 60(1)(a) in 2000, however, has brought the sub-section in line with s 35(1)(f) of the
Constitution, thus erasing any lingering doubts as to the ambit of its wording in constitutional terms.
7.12 Constitutionality of s 60(11)(a) and s 60(11)(b)

In S v Dlamini [120] the Constitutional Court brought out what was expected to be the definitive judgment on the
constitutionality of various provisions of s 60 of the Act. It is a disappointing judgment, unfortunately characterised by a
lack of generosity and the missed opportunity of giving our law relating to bail the authority of great liberal thinking. When
one considers that s 39(2) of the Constitution peremptorily requires a court, when interpreting a statute, to promote the
spirit, purport and objects of the Bill of Rights, instead of seeking to justify extraordinary limitations of individual rights, it is
difficult to comprehend how and why the Constitutional Court managed to arrive at a judgment so restrictive of individual
rights—and moreover without a hint of dissent.
The saving grace may be that the Constitutional Court has not uttered the last word on the topic, as the court was at
pains to point out that the ultimate limitation that it was prepared to accept (that is, the limitation relating to 'exceptional
circumstances' in s 60(11)(a)) was 'a limitation which is reasonable
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and justifiable in terms of s 36 of the Constitution in our current circumstances'. [121] This hopefully implies that, should
'our current circumstances' change or altogether cease to prevail, the Constitutional Court would be prepared to reconsider
a challenge to the offensive provisions of s 60 of the Act. Considering that such provisions include the reverse onus
provisions contained in s 60(11)(b) as well as the far-reaching requirement in s 60(11)(a) that the accused should prove the
existence of 'exceptional circumstances' in order to justify his release, it would be fair to wonder what 'our current
circumstances' may conceivably be. The answer to this question is not difficult to find: 'our current circumstances' are
evidently circumstances gleaned from the Constitutional Court's own subjective perceptions of the crime situation in the
country (as opposed to perceptions based on objective statistical and empirical evidence which may, moreover, be applicable
to the country as a whole and not only, for instance, to the seat of the Constitutional Court in Gauteng). [122]
In similar vein is the Constitutional Court's following pronouncement in S v Dlamini: [123]
Experience has show n that organised community violence, be it instigated by quasi-political motives or by territorial battles for control
of communities for commercial purposes, does subside w hile ringleaders are in custody. Their arrest and detention on serious charges
does instil confidence in the criminal justice system and does tend to settle disquiet, w hether the arrestees are w ar-lords or drug-
lords. In my view , open and democratic societies based on human dignity, equality and freedom, after w eighing the facts enumerated
in paragraphs (a) to (e) of s 36(1) of the Constitution, w ould find sub-ss 60(4)(e) and (8A) reasonable and justifiable in the prevailing
climate in our country. (Emphasis added.)
This utterance has caused a prominent criminologist to question the soundness of the judgment: [124]
Experience? W hat experience? Sometimes taking gang leaders off the streets opens the space for a new and w ilder generation of
leadership. There are no axioms here. Each case has its ow n logic. Using that axiom as a basis for denying an accused bail strikes me
as a little crazy.
(With respect, experience of some of our inner cities and most strikingly illustrated in the gang-driven culture of the Cape
Flats (not to mention a comparable phenomenon on the international stage) - all matters both very visible and in the public
domain—indeed would seem to support the latter view.)
Thus, 'our current circumstances' and 'the prevailing climate in our country' are based on unfounded assumptions which
bear a stark resemblance to the rationalisations made by the Appellate Division in the darkest days of the apartheid era and
which, as Sarkin et al point out, [125] may have more to do with a fear of
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violence than with proven violence itself. A further lapse in reasoning by the Constitutional Court has seen it, over and
above elevating fear of violence to evidence of violence itself, taking judicial notice thereof that s 60(11)(a) of the Act will in
fact 'deter and control serious crime'. This much is clearly implied [126] when the Constitutional Court says that 'Parliament
enacted s 60(11)(a) with the clear purpose of deterring and controlling serious crime, an indubitably important goal'. What
the court lost sight of, is the fact that the aforesaid assumption was made in the complete absence of any empirical
evidence to the effect that to limit bail through the mechanism of s 60(11)(a) would deter or control serious crime. In point
of fact, Kriegler J, who delivered the judgment in S v Dlamini, himself had the following to say in S v Makwanyane, [127]
which concerned the contention that the death sentence served as a deterrent:
No empirical study, no statistical exercise and no theoretical analysis has been able to demonstrate that capital punishment has any
deterrent force greater than that of a really heavy sentence of imprisonment. That is the ineluctable conclusion to be draw n from the
mass of data so thoroughly canvassed in the w ritten and oral arguments presented to us.
All signs of empirical studies, statistical exercises, theoretical analyses or masses of data are starkly absent from the base
on which the S v Dlamini judgment was predicated. Be that as it may, the somewhat fragile (if not fractured) parameters of
the Dlamini judgment form the background against which the onus written into s 60(11)(a) and (b) of the Act must be
discussed and, for the time being at least, constitutes the determining factor when such onus is assessed.
7.13 The onus in s 60(11)(b) read with Schedule 5

Writing before the introduction of the 1997 amendment to s 60(11) of the Act, Steytler [128] states that, by explicitly
placing the onus on an accused, the only rule from which s 60(11) [129] deviates is that an accused should receive the
benefit of the doubt. He continues:
In assessing the constitutionality of this exception, the question is w hether it can be accommodated w ithin the broad framew ork of
'the interests of justice'. W hen the Canadian Supreme Court dealt w ith such a reverse onus provision, it asked w hether there w as
'just cause' for placing the onus on the accused. 'Just cause' entailed tw o criteria: first, w as the exception to the usual onus narrow ly
circumscribed and, second, w as it necessary to promote the proper functioning of the bail system? In answ ering both questions in the
affirmative, the matter w as thus resolved w ithout reverting to the limitation clause. It is submitted that a similar approach should be
adopted in South Africa. The question is thus w hether placing the onus on accused persons in serious cases is in accordance w ith the
interests of justice.
Placing the onus on an accused to convince the court that 'the interests of justice do not require his or her detention in custody', is
justified because in serious cases the inducement to evade trial or tamper w ith evidence is the most compelling, and the further
commission of offences of the same kind has the most devastating effect. . . .
The exception is further justified because of the limited deviation from the ordinary rules. The exception does not exclude bail; it
merely deprives an accused of the benefit of the doubt.
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Whether one approaches the provisions of s 60(11)(b) of the Act from the angle adopted by Steytler (that is, by merely
asking whether the accused is entitled to the benefit of the doubt) or from a reverse-onus perspective, it is submitted that
the effect is the same: in terms of the sub-section the accused must satisfy the court that the 'interests of justice' [130]
permit his release. As was stated by the Constitutional Court in S v Dlamini, [131] the sub-section 'clearly places an onus
upon the accused to adduce evidence'. And further:
How ever, apart from that, the exercise to determine w hether bail should be granted is no different to that provided for in sub-ss
60(4)-(9) or required by s 35(1)(f) [of the Constitution]. It is clear that an accused on a sch 5 offence w ill be granted bail if he or she
can show , merely, that the interests of justice permit such grant. The additional requirement of 'exceptional circumstances' imposed
by s 60(11)(a) is absent. A bail application under s 60(11)(a) is more gravely invasive of the accused person's liberty right than that
under s 60(11)(b).
The provisions of s 60(11)(b) of the Act read as follows:
Notw ithstanding any provision of this Act, w here an accused is charged w ith an offence referred to—
(b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt w ith in
accordance w ith the law , unless the accused, having been given a reasonable opportunity to do so, adduces evidence w hich
satisfies the court that the interests of justice permit his or her release.
It is by now settled law [132] that the sub-section burdens the accused not merely with an onus to adduce evidence, but a
reverse onus in terms of which he is required to satisfy the court, on a balance of probabilities, that the interests of justice
permit his release. The burden is, however, not unusually onerous or novel, and is in fact consistent with that which applied
in all pre-Constitution bail applications [133] and moreover closely resembles similar clauses which have passed constitutional
muster in other jurisdictions. Thus, for instance, in Canada the Supreme Court upheld a reverse-onus provision contained
in the Canadian Criminal Code, which requires the accused to establish that his pre-trial detention is not justified, on the
ground that although the provision was unconstitutional as it amounted to a denial of bail, it did meet the constitutional
standard of 'just cause' contained in s 11e of the Canadian Charter of Rights and Freedoms. 'Just cause' for the reverse
onus was held in R v Morales [134] to exist where the accused, while at large and awaiting trial on an 'indictable offence', [135]
was charged with committing a second indictable offence allegedly whilst at large. And in R v Pearson [136] it was held that
the greater risk of abscondment constituted by drug dealer 'with access to funding and sophisticated organisations that
could assist in a flight from justice' amounted to 'just cause' for
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requiring him to establish that he should be released. [137] And in the United States of America it was said in Hunt v
Roth: [138]
W e do not hold and need not decide that there is a constitutional right in every case to release on bail. As w e have discussed, there
exists a strong argument that bail may be properly denied w ithout encroaching on constitutional concerns w here a judicial officer
w eighs all the appropriate factors and makes a reasoned judgment that the defendant's past record demonstrates that bail w ill not
reasonably assure his or her appearance or, arguendo, that he or she, because of the overall record and circumstances, poses a
threat to the community. The fatal flaw in the Nebraska constitutional amendment is that the state has created an irrebuttable
presumption that every individual charged w ith this particular offense is incapable of assuring his appearance by conditioning it upon
reasonable bail or is too dangerous to be granted release. . . . The state may be free to consider the nature of the charge and the
degree of proof in granting or denying bail but it cannot give these factors conclusive force.
The ostensible clash between the wording of s 60(1)(a) and s 60(11)(b) of the Act is explained and justified by the fact that
the reverse onus in the latter sub-section applies 'notwithstanding any provision of this Act'. [139]
7.14 Incidence of the onus in terms of s 60(11)(b)

The reverse onus contained in s 60(11)(b) is activated only once the accused is 'charged with an offence referred to in
Schedule 5, but not in Schedule 6'. [140] This means, for example, that where the accused is charged with murder, his bail
application would fall under Schedule 5, unless the murder was allegedly 'planned or pre-meditated', in which event it would
fall under Schedule 6 (which, as will be seen, carries a crushing burden of proof). On the other hand, if the accused were,
for instance, to be charged with attempted murder, his bail application would fall under neither Schedule 5 nor Schedule 6,
and the state would attract the onus in the ordinary sense, as attempted murder falls under Schedule 5 only in the event of
its 'involving the infliction of grievous bodily harm', and does not feature in Schedule 6 at all. It would accordingly be
incumbent upon the state to show by means of a description of the alleged offence in the charge sheet, or through
evidence, or by means of a certificate issued in terms of s 60(11A) that the offence charged indeed falls within Schedule 5
and that the reverse onus provided for in s 60(11)(b) should operate. Only once the state has discharged this particular
onus, will the accused incur the burden of satisfying the court that the interests of justice permit his release.

First, it should be pointed out that a perception generally encountered in the courts to the effect that a bail application could
be either a Schedule 6,
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Schedule 5 or Schedule 1 application, is misconceived. Save that mention is made of it in certain provisions of the Act
including s 60(4)(a) and Schedule 5, Schedule 1 has nothing to do with bail. If a matter therefore does not fall under s
60(11) of the Act, a bail application would be governed by s 60(1) read with s 60(4) and the 'ordinary' or common-law
principles as amplified by s 60(5)-(10). Thus, such an application would be apposite in respect of those offences listed in
Schedule 1 as well as statutory and common-law offences not meriting a mention in Schedule 1.
Next, attention should be drawn to the references to Schedule 1 which are made in Schedule 5. Thus, Schedule 5 will
apply to a bail application where the accused is charged, not with an offence prima facie envisaged by s 60(11)(b), but with
a Schedule 1 offence in circumstances where he had been convicted of a Schedule 1 offence in the past. On the face of it,
this provision is not objectionable as it clearly seeks to make it more difficult for the accused to obtain bail where he has
been brought to court on one of the more serious common-law charges and has previously made himself guilty of
committing such an offence. Less acceptable on a constitutional level, however, is the other instance referred to in Schedule
5, namely where the accused has been arrested on a Schedule 1 charge which was allegedly committed while he was on bail
on another Schedule 1 charge. One would have thought that the mere statement of this provision would cry out its
constitutional shortcomings: here the accused is saddled with a reverse onus on the strength of two mere allegations,
namely that he is alleged to have committed the latter offence for which he has been arrested, and that he was on bail at
the time in respect of an offence which he is alleged to have been committed. Thus a mere allegation is elevated to a
circumstance which holds serious prejudice for the accused. The unfairness of this state of affairs was highlighted by Van
Heerden J (as she then was) in Okoye, [141] where an increased burden was sought to be placed on an accused who had
been arrested on a charge under the drugs legislation, it being alleged that the latest arrest was predicated on the
commission of an offence while the accused was on bail in respect of a similar offence:
The magistrate laid great emphasis on the fact that the accused is currently already standing trial on a very similar charge, viz
possession of dependence-producing substances. Clearly, on the facts before the Court, it w ould seem that the State's case in that
regard is a stronger one (than in respect of the later charge). It has also been said in our case law that, if an accused commits a
similar offence w hile he is out on bail, that should count very much against him. The fact remains, how ever, that the accused has not
been convicted of committing another offence w hile he is out on bail . . . (Emphasis added.)
The first move in Schedule 5 bail applications lies with the state: the ordinary burden of proof that the interests of justice
would be best served by the continued detention of the accused remains with the state until such time as it has shown the
offence with which the accused is charged to be one that falls within Schedule 5 (and not Schedule 6). The state may
discharge this burden by
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giving a full and proper description of the alleged offence in the charge sheet, or by resorting to a certificate from the
attorney-general in terms of s 60(11A) of the Act, which reads as follows:
(a) If the attorney-general intends charging any person w ith an offence referred to in Schedule 5 or 6 the attorney-general may,
irrespective of w hat charge is noted on the charge sheet, at any time before such person pleads to the charge, issue a w ritten
confirmation to the effect that he or she intends to charge the accused w ith an offence referred to in Schedule 5 or 6.
(b) The w ritten confirmation shall be handed in at the court in question by the prosecutor as soon as possible after the issuing
thereof and forms part of the record of that court.
(c) W henever the question arises in a bail application or during bail proceedings w hether any person is charged or is to be charged
w ith an offence referred to in Schedule 5 or 6, a w ritten confirmation issued by an attorney-general under (a) shall, upon its mere
production at such application or proceedings, be prima facie proof of the charge to be brought against that person.
It should be noted that the attorney-general's certificate constitutes only prima facie proof of the charge, and not
conclusive proof thereof nor even prima facie proof that the charge itself qualifies as an offence referred to in Schedule 5.
Thus, it is submitted that it should be open to the accused to challenge the attorney-general's certificate by himself
leading evidence to counter it, or cross-examining the state witnesses at the bail hearing with a view to showing what the
true nature of the alleged offence is. In such cases, however, it ought to be competent for the court to rely provisionally on
the contents of the certificate and to judge finally the question of whether the offence is a Schedule 5 offence (and also the
location of the onus) once all the evidence is in. This eminently practical procedure has, however, been disapproved by the
SCA in S v Botha. [142]
It is quite common to find that, at the commencement of a bail hearing predicated upon the provisions of s 60(11)(b) of
the Act, the charge sheet is blank but for a pro forma which at best names the offence with which the accused is charged.
The state then claims that the charge is a 'Schedule 5 offence' and, if challenged on such assertion, proceeds to lead
evidence in order to prove that the charge falls within Schedule 5. This course of conduct, seemingly freely allowed by
magistrates and judges alike, is impermissible: the incidence of the burden of proof under the sub-section arises only once
the state has established that the charge falls within Schedule 5—and apart from the s 60(11A) certificate this can only be
done through an adequate description of the charge in the charge sheet. The court held as follows in S v Botha: [143]
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At the outset it w as argued before us on behalf of accused 1 and 3 that the Legislature could not have intended that a mere
allegation in the indictment that an accused is guilty of a Schedule 6 offence, w ould be sufficient to make s 60(11)(a) of the Act
applicable. According to the argument the court hearing the bail application must itself first evaluate the facts in order to determine
w hether the State w ill be able to prove a Schedule 6 offence at the trial, before s 60(11)(a) w ould apply. I am unable to agree w ith
the argument. The sub-section is w orded clearly and unambiguously and is susceptible to only one interpretation. That is that the
formulation of the charge in the indictment, if necessary supplemented by a w ritten confirmation in terms of s 60(11A), is decisive of
the question w hether an accused must discharge the onus in s 60(11)(a) in order to attain his release on bail. (My translation)
With respect, since this dictum was pronounced it has caused endless difficulties in the courts. In the previous edition of
this work it was submitted [144] that, in order to establish that a bail application is governed by the provisions of s 60(11)(a)
or (b),
'[I]t w ould accordingly be incumbent upon the state to show by means of a description of the alleged offence in the charge sheet, or
through evidence, or by means of a certificate issued in terms of s 60(11A) that the offence charged falls w ithin Schedule 5 [or 6] and
that the reverse onus provided for in s 60(11)(a) [or (b)] should operate. Only once the state has discharged this particular onus, w ill
the accused incur the burden of satisfying the court that the interests of justice permit his release'.
Inasmuch as the judgment in S v Botha in terms excludes the hearing of evidence in order to determine whether s 60(11)
applies, the following situations arise on a fairly frequent basis, and lead to absurdity and injustice: as a first example, the
charge sheet may ('indictment' in the High Court) set out details which describe the charge in accordance with the contents
of Schedule 5 or 6, and accordingly (following S v Botha) the bail application becomes one with a reverse onus in terms of s
60(11). However, once evidence is led, and especially after cross-examination of the police officer who is routinely called by
the state to testify as to the facts of the case contained in his docket, it emerges that the matter is not one that falls under
Schedule 5 or 6 at all, but is just an ordinary, common or garden bail application in which the state bears the onus. The
court, bound by the authority of the SCA, is bound to apply s 60(11) and to refuse bail unless the accused discharges the
onus.
Another example is where the charge sheet is a terse one that does not disclose details which pertinently link the charge
with any of those listed in Schedule 5 or 6: following S v Botha, the court will be bound to approach the bail application as
an ordinary one, the state carrying the usual onus. But not infrequently, the evidence led by the state clearly establishes
that the charge sheet was inadequate and that the matter is one that should be governed by Schedule 5 or 6, and yet the
court would not be at liberty to cast the onus onto the accused in accordance with the provisions of s 60(11). A third
example of the confusion flowing from the judgment in S v Botha, though less frequent, is where a certificate issued by the
DPP in terms of s 60(11A) is handed in, thus
Page 97
determining that the application is subject to the reverse onus contained in s 60(11)(a) or (b): if the evidence led during the
bail application contradicts the certificate, the court would nevertheless be bound to regard the matter as one governed by
Schedule 5 or 6, thus having to turn a blind eye to the anomaly and, indeed, absurdity of the situation. Sadly, such anomaly
and absurdity may profoundly affect the accused's right to liberty and so lead to injustice.
Once it has been established that the offence with which the accused is charged is one referred to in Schedule 5, the
accused will be required to 'adduce' evidence (which does not mean that he himself needs to testify) which, as was shown
above, he may do by means of viva voce evidence or affidavit. Thereafter the state will be required to lead evidence, at the
very least in order to place all the relevant circumstances before the court. Even though the accused is saddled with the
burden of proof, it is submitted that there can be no question of the application of the equivalent of a s 174 discharge or
absolution from the instance at the end of the accused's case, as the proceedings are sui generis and intended to place the
court in a position properly to adjudicate. (See, for example, S v Jonas 1998 (2) SACR 673 (SE).)
7.16 The onus in s 60(11)(a) read with Schedule 6

[145]
Where the accused is charged with an offence referred to in Schedule 6, [145] he carries the burden of satisfying the court
on a balance of probabilities 'that exceptional circumstances exist' which, in the interests of justice, permit his release. The
burden of proof is ostensibly no different from that which applies in terms of s 60(11)(b) of the Act in respect of Schedule 5
offences, save that the nature of the evidence presented should show the existence of 'exceptional circumstances'.
Although the catalyst of a veritable judicial avalanche of attempts to define the undefinable, little judicial harmony exists with
regard to the meaning of the phrase 'exceptional circumstances', which, notwithstanding its uncomplicated dictionary
meaning, has proved to be an illusive concept. The effect of the wording of the sub-section has accordingly been to saddle
the accused with an exceptional burden of proof, even though the standard should always remain no greater than proof on
a balance of probabilities. In S v Dlamini, [146] in which the Constitutional Court held s 60(11)(a) of the Act to be
constitutional, it was held that the accused, in a Schedule 6 bail application, has a clear and definite obligation to persuade
the court. In order to do so, he has a duty to adduce evidence of exceptional circumstances, and he has an onus to satisfy
the court, by the end of the bail inquiry, that exceptional circumstances exist which in the interests of justice permit his
release. [147]
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7.16.1 Defining 'exceptional circumstances' generally

The Constitutional Court's guidance as to what 'exceptional circumstances' might entail was less clear. Understandably,
Kriegler J in S v Dlamini declined to define 'exceptional circumstances' as that would be attempting to define the indefinable.
However, it was held that the expression was not so vague as to be void. [148] As was pointed out by Comrie J in S v
Mohammed, [149] however, the 'statutory criterion, formidable though it may conceivably be, is flexible and subject to
judicial control on a case-by-case basis'. Circumstances that may be regarded as 'ordinary' in one case, may be treated as
'exceptional' in another. Thus, it was said in S v Dlamini: [150]
Likew ise I do not agree that, because of the w ide variety of 'ordinary circumstances' enumerated in sub-sections (4) to (9), it is
virtually impossible to imagine w hat w ould constitute 'exceptional circumstances', and that the prospects of their existing are
negligible. In requiring that the circumstances prove to be exceptional, the sub-section does not say they must be circumstances above
and beyond, and generically different from those enumerated. (Emphasis added.)
In observing that 'in the light of the aforegoing it may be accepted that what Conradie J said in S v C 1998 (2) SACR 721
(C) at 724e and 725c about the meaning of exceptional circumstances is no longer good law', Comrie J in an otherwise
impressive judgment in S v Mohammed [151] was, however, not correct: the Constitutional Court appears to have stressed
that 'ordinary circumstances' may indeed serve to establish 'exceptional circumstances'. Thus, in S v Dlamini, [152] it was
said (inter alia with reference to Conradie J's judgment in C [referred to by the Constitutional Court as Coetzee v The
State]):
There is no reason to believe that courts w ill find it impossible to find that release on bail is justified w here an 'ordinary' circumstance
is present to an exceptional degree. This is exemplified by three of the unreported judgments that w ere handed up, namely Coetzee v
The State an unreported decision of the Cape of Good Hope High Court case A942/98 (26 November 1998); [153] Adams v The State an
unreported decision of the Cape of Good Hope High Court, case A781/98 (6 October 1998); and Hendriks v The State an unreported
decision of the Cape of Good Hope High Court, case A714/98 (1 October 1998).
Comrie J, having considered the dictum in S v Dlamini, went on as follows: [154]
I trust that I shall not be guilty of w alking w here constitutional angels fear to tread, but it seems to me that I should endeavour to
ascribe some broad band of meaning to the phrase 'exceptional circumstances' (buitengew one omstandighede). The Courts have
assiduously refrained from attempting precise definitions. . . . [The learned Judge then gave an overview of past decisions and
textbook comments on the phrase, as w ell as various dictionary definitions.] W hat appears from these definitions in my opinion is that
'exceptional' ('buitengew oon') has tw o shades or degrees of meaning. The primary meaning is simply:
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unusual or different. The secondary meaning is: markedly unusual or specially different (as for example in a musician blessed w ith
exceptional talent). I do not think it necessary, in the context of s 60(11)(a), to plump for one degree of meaning in preference to the
other. The phrase 'exceptional circumstances' does not stand alone: the schedule 6 applicant has to adduce evidence w hich satisfies
the court that such circumstances exist 'w hich in the interests of justice permit his or her release'. The proven circumstances have to
be w eighed in the interests of justice. So the true inquiry, it seems to me, is w hether the proven circumstances are sufficiently
unusual or different in any particular case as to w arrant the applicant's release. And sufficiency w ill vary from case to case. It may be
that this approach adds to the element of judicial discretion w hich is already inherently present in s 60(11)(a). If so, that is no bad
thing in my view .
7.16.2 'Ordinary circumstances' as 'exceptional circumstances'

In S v C, [155] Conradie J remarked that a corollary of the presumption of innocence was that an awaiting trial prisoner
should not be detained unless his detention serves a good purpose. Superimposing this axiom on the provisions of s
60(11)(a) of the Act, the learned judge questioned the demands of the sub-section: [156]
The ordinary circumstances—those I have enumerated above—apparently no longer suffice. An alleged offender must now be
detained even though he can conclusively show that he w ill stand trial, w ill not interfere w ith the administration of justice, and w ill not
offend further. Can it really be that the Legislator intended that a person aw aiting trial must prove something more in order to be
released—something w hich has no rational connection w ith the primary objective of bail that an accused should in due course appear
at court w ithout having undermined the administration of justice? . . . As far as the current case is concerned, the problem w ith s
60(11) of the Act is caused by the term 'exceptional circumstances'. In the spirit of the Constitution and the common law , s 60(11)
may not be read as requiring more of a person aw aiting trial than to prove the ordinary circumstances mentioned above. The moment
more is required, it w ould be punitive. That w ould be utterly and completely unacceptable. Accordingly, all that the legislature in my
view stipulated in a clumsy fashion, is that a court in dealing w ith Schedule 6 offences should exercise exceptional circumspection in
considering ordinary circumstances. (My translation)
The learned judge then continued by pointing out that risks attached to the release of any suspect. However:
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The probabilities are decisive. In the case of a Schedule 6 offence the court must be able to find w ith a high degree of certainty that a
person aw aiting trial w ill do w hat is expected of him in terms of his bail conditions. That is all. [157] (My translation)
In similar vein is the judgment in S v Vanqa: [158]
Circumstances of an ordinary nature to bail applications can, in the context of a particular case, be exceptional or unusual.
It is submitted that not only has Conradie J's judgment attracted the endorsement of the Constitutional Court in S v
Dlamini, [159] but it is manifestly the correct approach to take to the interpretation of 'exceptional circumstances' in a
constitutional democracy. S v Vanqa, it is submitted, reflects a correct reading of the S v Dlamini judgment. It is further
submitted to be implicit in Conradie J's aforesaid dictum that a court, in considering whether exceptional circumstances
exist, should consider such circumstances as may have been placed before it (including the 'ordinary circumstances')
cumulatively. Thus, in Hendricks v S [160] Griesel J said the following:
. . . It w as submitted on behalf of the accused that, in determining w hether or not exceptional circumstances have been show n, the
cumulative effect of all the circumstances of each particular case must be evaluated and not each individual circumstance, as w as
done by the Magistrate in the present case. I agree w ith this submission. In my judgment it is the only sensible and logical approach
to the provision in question. It recognises the fundamental fact that, although a series of individual factors, taken in isolation, may not
be exceptional, it may w ell be exceptional to encounter them simultaneously and collectively in combination. (My translation)
In S v Mazibuko and Others [161] the court sought once more to define 'exceptional circumstances'. Rall AJ proceeded to
question and reject the notion that the 'ordinary circumstances' may constitute 'exceptional circumstances' and, it is
submitted, in doing so the court erred in its reading of S v Dlamini and in particular the endorsement it gave to Conradie J's
judgment in S v C [162] to the effect that the cumulative effect of the 'ordinary circumstances' may be to constitute
'exceptional circumstances'.
Page 101
There can, of course, be no numerus clausus of 'exceptional circumstances': each case may throw up its peculiar
circumstances which may vary from the 'ordinary' or 'general' to the unique. However, it is submitted that the guidelines
provided by the legislature in s 60(4) to (8) provide an easy reference, particularly when it is borne in mind that those reflect
the 'ordinary circumstances' to which Conradie J refers in S v C. Should all, or a substantial number, of the factors
contained in the guidelines be shown to be present in favour of the accused, he may well be said to have discharged the
onus of proving the existence of 'exceptional circumstances'.
7.16.3 Likelihood of acquittal as 'exceptional circumstance'
It may further be postulated that, without reference to any other circumstances, whether 'ordinary' or inherently
exceptional, the accused will have discharged the onus in terms of s 60(11)(a) of the Act if it is established that the state
has no case against him on the charge upon which he has been brought to court, or has no prospect of succeeding in a
prosecution. Thus, in S v Jonas [163] the following was said:
In this matter the State did not place any evidence before the court, either in opposing the application for bail or in rebuttal of the
appellant's denial of the commission of the offences w ith w hich he had been charged. It w ould appear that the State had adopted
this line of approach on the assumption that the appellant had all to do in order to succeed w ith the application for bail. On the
strength of the onus w hich the amending provisions had cast on the appellant, the magistrate simply adopted the attitude that
because the appellant had show n no exceptional circumstances bail should be refused. The magistrate did not say w hat such
exceptional circumstances might be. I do not believe that it could have been the intention of the Legislature, w hen it enacted the
amending provisions of s 60(11) of the Act, to legitimise the at random incarceration of persons w ho are suspected of having
committed Schedule 6 offences, w ho, after all, must be regarded as innocent until proven guilty in a court of law .
And in Francis [164] Donen AJ held as follows:
It is common cause, and has been conceded by counsel for the state in this matter, that the facts pertaining to the charge against
the Appellants do not comply w ith the requirements of the section [in terms of w hich they have been charged] . . . the Appellants
have not been charged w ith any crime other than violating section 28. In the circumstances the magistrate misdirected himself in
refusing to grant bail on the strength of the state case. . . .
It has also been argued by the state that there are other possible charges w hich may be brought against the Appellants. The bail
application took place a number of months ago and since that time, no such charges have been added. I must proceed for the
purposes of this bail appeal on the basis that there is only one charge against the Appellants, w ith no merit in it. To accede to the
w ishes of the state in these circumstances w ould amount to the preventive detention of the Appellants because they support or
belong to PAGAD. [165] That is something w hich I cannot order, either in terms of the Constitution or in terms of the common law of
this country. The upshot of the matter is really the failure to bring a proper charge against the Appellants. The record is taken up w ith
evidence from w hich innuendos w ere sought to be
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draw n because the Appellants are allegedly members of PAGAD. . . . None of this is significant for the purposes of the present
decision. W hat is most significant and disturbing for this particular court is a fourth force w hich appears to be raising its head amid the
spiral of violence w hich is afflicting our country. The force to w hich I refer is the force of fear, paranoia and suspicion caused by the
spiral of violence w hich is affecting the judgment and responses of people w ho normally have the best intentions. In this particular
case I have no doubt that the persons w ho brought the charges and the persons w ho resisted the bail application had the best
intentions in the w orld. W hat they did not do is they did not study the facts and they did not study the law . They seem to have been
diverted by the above innuendo and suggestion. Because there is no basis upon which the Appellants can be convicted of the charge with
which they are charged there is no basis whatsoever upon which I can conclude anything other than that the interests of justice demand
their release. They cannot be detained for the purpose of being acquitted on the present charge. (Emphasis added.)
Therefore there is certainly scope for showing the existence of exceptional circumstances by attacking the strength of the
state's case and proving the cogency of that of the accused, [166] as was pointed out above. The possibility was first
reported in S v Jonas [167] where the accused presented evidence of an alibi which, if proved at trial, would prove that he
could not have committed the crime with which he was charged. This evidence remained uncontroverted and indeed
unchallenged. It was held [168] that in order to present a successful counter to such evidence the state would have to lead
countervailing evidence. In holding that exceptional circumstances had been proved, the court said: [169]
To my mind, to incarcerate an innocent person for an offence w hich he did not commit could also be view ed as an exceptional
circumstance. W here a man is charged w ith a commission of a Schedule 6 offence w hen everything points to the fact that he could not
have committed the offence because, eg he has a cast-iron alibi, this w ould likew ise constitute an exceptional circumstance.
S v Jonas was followed in a number of cases, [170] and in S v Botha [171] the SCA effectively endorsed the finding of
exceptional circumstances in S v Jonas and the quantum of proof held to be required in S v Mauk by holding that
exceptional circumstances may be established by the accused, proving that he is likely to be acquitted at trial. It is
therefore submitted that the holding in S v Mazibuko [172] that, in order to prove exceptional circumstances on the basis of
the quality of the accused's defence to the charge, he has to prove that his defence stood 'an exceptionally
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good chance' of succeeding at trial, was clearly wrong and moreover flew in the face of the judgment in S v Mathebula [173]
to which the court itself, curiously, referred. In S v Mathebula it was held: [174]
[11] In the present instance the appellant's tilt at the State case w as blunted in several respects: first, he founded the attempt upon
affidavit evidence not open to test by cross-examination and, therefore, less persuasive: cf S v Pienaar 1992 (1) SACR 178 (W ) at
180h; second, both the denial of complicity and the alibi defence rested solely on his say-so w ith neither w itnesses nor objective
probabilities to strengthen them. The vulnerability of unsupported alibi defences is notorious, depending, as it does, so much upon
the court's assessment of the truth of the accused's testimony. Insofar as the appellant suggested that the police had extracted an
inadmissible confession from him (or his co-accused), he provided no detail w hich might have enhanced either his or their reliability or
credibility.
[12] But a State case supposed in advance to be frail may nevertheless sustain proof beyond a reasonable doubt w hen put to the
test. In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove on a
balance of probability that he will be acquitted of the charge: S v Botha en 'n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2
All SA 577) at 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) ([2002] 4 All SA 10) at 556c. That is no mean task, the more especially
as an innocent person cannot be expected to have insight into matters in w hich he w as involved only on the periphery or perhaps not
at all. But the State is not obliged to show its hand in advance, at least not before the time w hen the contents of the docket must be
made available to the defence; as to w hich see Shabalala and Others v Attorney-General, Transvaal, and Another 1995 (2) SACR 761
(CC) (1996 (1) SA 725; 1995 (12) BCLR 1593). Nor is an attack on the prosecution case at all necessary to discharge the onus; the
applicant who chooses to follow that route must make his own way and not expect to have it cleared before him. Thus it has been held
that until an applicant has set up a prima facie case of the prosecution failing there is no call on the State to rebut his evidence to
that effect: S v Viljoen at 561f-g.
[13] As w ill be apparent from the paucity of facts in support of his case, the appellant fell substantially short of the target. Despite the
w eak riposte of the State, the magistrate w as left, after hearing both sides, no w iser as to the strength or w eakness of the State
case than he had been w hen the application commenced. It follow s that the case for the appellant on this aspect did not contribute
anything to establishing the existence of exceptional circumstances. (Emphasis added.)
7.16.4 Preparation of defence as 'exceptional circumstance'

A truly cogent circumstance, less frequently advanced in the courts, is the accused's entitlement to prepare his defence. In
cases of considerable complexity, for instance those that necessitate frequent and lengthy consultation with counsel and
expert witnesses, it may render the right to prepare a defence nugatory if the accused were incarcerated and placed beyond
reach of these necessities. Such a case was Van Vuuren, [175] where the possibility of a propensity for violence on the
accused's part had been raised by the state but relegated to a position of secondary importance in the light of the defence
of 'non-pathological automatism' and the accused's concomitant need for access to
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experts. In Oehl v Additional Magistrate, Bellville, [176] the accused had been charged with numerous counts of fraud, the
documentary evidence needed to be examined and consulted upon running to over 30 000 documents. Notwithstanding the
virtual impossibility of meaningful and confidential consultations in the circumstances (the documents could not be
accommodated, nor could counsel consult, in the accused's cell; the prison had no facility for accessibly storing the
documents; and many nightly hours of studying the documents and consulting with counsel and experts were required),
the need for bail to be granted on account of these difficulties fell on deaf judicial ears. [177]
7.16.5 Some misconceptions regarding proof of 'exceptional circumstances'
Although it will be clear from the above discussion that the Constitutional Court has given its approval to the judgment in C
(to the effect that the cumulative effect of the 'ordinary' circumstances may suffice to establish 'exceptional' circumstances),
too many unhelpful attempts have been made to give precise meaning to the term 'exceptional circumstances'. Sadly, there
appear to be few prosecutors who are able to resist asking the accused 'Why do you say you should be given bail?' and
'What is exceptional about your circumstances?'—whereas in law no catastrophic event in the accused's life is required for
exceptional circumstances to be found. Even more sadly, many a practitioner, unnecessarily, continues to attempt valiantly
but vainly to elevate mundane domestic circumstances to an exceptional level, instead of studying the case law. Saddest of
all is the fact that numerous judicial officers in both lower and superior courts appear to be oblivious of the fact that
'ordinary' circumstances may meet the challenge of s 60(11)(a).
Another aspect deserving of comment is the tendency of prosecutors, especially in Schedule 6 matters, to over-
emphasise the element of seriousness by attempting to prove the accused 'guilty' during the bail application, and being
permitted to do so by magistrates who often go on to all but find the accused guilty and to refuse bail without even dealing
with the risk factors and how they could be addressed. Alarmingly, this attitude is all too frequently endorsed by certain
judges. This unfortunate state of affairs has led to practitioners increasingly deciding to address the merits of the charge
during the
Page 105
bail application—a tactic which, although perfectly legitimate and sometimes successful, unnecessarily converts the bail
application into a protracted adversarial battle, very rarely reaps reward and more often than not leads to difficulties
regarding consistency when the accused ultimately testifies at trial. Our superior courts have made authoritative
pronouncements on attempts by accused persons to discharge the onus of proving exceptional circumstances by
attempting to prove their innocence during the bail hearing. Thus, for instance, it was said in S v Viljoen [178] that—
it should be guarded against that every bail application is converted into a protracted trial before the criminal trial. Take the instant
matter as an example, w here there w ere repeated statements by the accused that he had in fact murdered his w ife and w hich he
now tried to devalue by contending that he had been assaulted by police officials and forced to do so. Must the accused, at the bail
stage, give viva voce evidence w hich must be rebutted by viva voce evidence of one or more police officials? The same scene w ill
repeat itself sooner or later before a trial Court. Could it ever have been the intention of the legislature that bail applications should
be dress-rehearsals for the trial? I strongly doubt it. I w ould therefore rule that the hearing of bail applications should be kept w ithin
reasonable limits, and subject to the provisions of the Act and the rights of the accused. (My translation)
Yet another aspect deserving of comment is the misconception harboured by several courts since publication of the
judgment in S v Mathebula [179] that in each Schedule 6 application the accused must prove on a balance of probabilities
that he will be acquitted at trial. With respect, this casts an outrageous onus on the accused, and represents an alarming
misreading of Mathebula and the principles involved. The dictum in Mathebula which is pertinent to this misconception is
quoted above [180] and manifestly applies only if the accused places reliance on the weakness of the state's case (or on his
chances of acquittal at trial) as an exceptional circumstance justifying his release on bail. This much appears from the
opening and penultimate sentences of para [12] of the judgment, as well as the use of the words 'on this aspect' in para
[13] thereof.
Page 106
7.17 Incidence of the onus in terms of s 60(11)(a)

As is the case in respect of s 60(11)(b) of the Act, which relates to Schedule 5 offences, [181] the accused will incur the onus
of proving the existence of exceptional circumstances, on a balance of probabilities, only once the state has succeeded in
proving the existence of the objective jurisdictional fact (that is, 'a fact or state of affairs, which, objectively speaking must
have existed before the statutory power could validly be exercised'), [182] namely that the offence with which the accused is
charged is one referred to in Schedule 6. The words of Friedman J in S v Ramgobin (1) [183] are equally applicable to this
requirement:
The arrest of an accused person on such a charge is therefore a circumstance w hich must be present before the attorney-general is
entitled to act in terms of the section. This is not, as was stated by the magistrate, simply a circumstance upon which the attorney-
general had to satisfy himself; it is something about which the court would have to be satisfied before the section and any order issued by
the attorney-general under the section has any application. (Emphasis added.)
The judgment of the SCA in S v Botha, [184] in which it was said that a bail application must be categorised as one in terms
of Schedule 5 or 6 solely on the strength of the information contained in the charge sheet, if necessary supplemented by a
confirmatory certificate issued by the DPP in terms of s 60(11A), is critically discussed in some detail above. [185]
To the rule that the jurisdictional fact of a charge of an offence listed in Schedule 6 must be present before the
reverse-onus is incurred, there is an exception which is itself contained in Schedule 6: where the accused is out on bail in
respect of a Schedule 5 offence, and is then arrested for a Schedule 5 offence committed whilst he is on bail, the latter
arrest brings into play Schedule 6. [186] One may have doubts as to whether the mere arrest of the accused whilst out on
bail could legitimately and constitutionally be sufficient to elevate his burden from proof on a balance of probability to proof
of exceptional circumstances. After all, the presumption of innocence continues to operate in the accused's favour in respect
of both the earlier and subsequent arrests. [187] However, although it was not the subject of the judgment as such, in S v
Rudolph [188] the SCA voiced no disapproval or doubt as to the legitimacy of this measure: [189]
[8] Although the appellant has no previous convictions, he w as on bail of R2000 pending his trial on charges of rape and attempted
murder allegedly perpetrated on his former w ife at the time of the incident on 29 April 2009. The incident has given rise to a second
charge of attempted murder. Attempted murder is an offence referred to in Schedule 5 to the Criminal Procedure Act 51 of 1977 (the
Act). Schedule 5 includes '(a)ttempted murder involving the
Page 107
infliction of grievous bodily harm' and 'rape'. A Schedule 5 offence committed w hilst 'released on bail in respect of an offence referred
to in Schedule 5' constitutes an offence under Schedule 6.

As with applications that are subject to Schedule 5, there is no particular difficulty identifying those charges to which
Schedule 6 relates. However, whereas Schedule 5 contains a reference to the activation of a reverse onus where the accused
is alleged to have committed the current Schedule 1 offence while on bail in respect of a Schedule 1 offence allegedly
committed by him, Schedule 6 contains similar references to previous convictions and allegations of having committed
Schedule 5 offences. [190] Again, the procedure to be adopted in a bail application which is alleged to fall under Schedule 6 is
no different from that which applies to Schedule 5 applications. Thus, the state must show (whether by a full description of
the charge in the charge sheet, or by a certificate from the attorney-general in terms of s 60(11A) of the Act) that that
offence truly falls within Schedule 6, for without this jurisdictional fact having been satisfied, the onus would not shift to the
accused. Once the state has presented a charge sheet containing sufficient information to identify the charge as one related
to an offence listed in Schedule 6, or produced a valid certificate in terms of s 60(11A), the accused will start the bail
application proper by adducing evidence (after, of course, having been given a reasonable opportunity to do so). The
evidence may be viva voce, and may consist of that of the accused and/or witnesses; or it may be presented on affidavit; or
both. (It is important to note that the obligation to 'adduce evidence' does not compel the accused himself to testify.)
Thereafter, the state will have to present evidence to counter or rebut that of the accused, which may be done viva voce
and/or by affidavit. It should be cautioned that the accused should bear in mind, when electing to adduce evidence by way
of affidavit, that he runs a real risk in circumstances where the onus is borne by him. The following was said in this regard
by Comrie J in S v Tshabalala: [191]
The only practical and convincing w ay in w hich the appellant could counter the aforegoing w as by tendering viva voce evidence and
submitting herself to cross-examination. Such a tender, had it been made, w ould surely have been acceded to by the magistrate. Mr
Veldhuizen pointed to a risk of self-incrimination, if the appellant had elected to give viva voce evidence. . . . There is no particular
reason to think that the appellant w ould have incriminated herself. According to her founding affidavit, the appellant denies having
been involved in the murder of her late husband, intends to plead not guilty, and is confident of an acquittal. Such risk of self-
incrimination as may have existed, was a risk which she should have run in the circumstances. (Emphasis added.)
Page 108
7.19 Peregrini and the onus

It stands to reason that an accused person who applies for bail will incur some sort of burden of satisfying the court that he
will stand trial if he is a foreign citizen who may easily return to his native country and thus avoid his trial. The question is
one of common sense rather than law, and it cannot be postulated as law that such a person bears an onus or an increased
onus or is not entitled to his pre-trial release. [192] Bail conditions such as the surrender of his passport and other travel
documents and regularly reporting to the police may equally ensure the accused's attendance at his trial and thus open the
way to his being released on bail. Nevertheless, it has been observed [193] that the fact that an accused has only fairly
recently been naturalised in South Africa and that he hails from a country which has not entered into an extradition treaty
with South Africa will weigh heavily against him in a bail application. On the other hand, the certain fact that foreign
members of an accused's organisation have managed to avoid standing trial by absconding to their home country cannot be
raised as a bar to the accused being granted bail in the absence of any indication that he, personally, will avail himself of a
similar escape route. [194]
There is no provision in the Act which purports to limit or deny bail in respect of foreigners who stand accused in South
African courts. [195]
7.20 The rules of evidence in bail hearings [196]

It will be seen from the wording of s 60(2)(b) and (c) as well as s 60(3) of the Act that the legislature has seen fit to
introduce specific provisions relating to the procurement of evidence in bail hearings. It has also, interestingly, distinguished
between 'information'—which may informally be provided from the bar—and 'evidence'. [197] The Act is, however, silent as to
the nature of the evidence which may be placed before the court and the admissibility of certain evidence. This leaves the
common law, as developed by our courts, intact.
This topic is returned to, more fully, below. [198]
7.21 Legal representation [199]

Upon his first appearance in court the accused is entitled to be legally represented by his counsel by virtue of the provisions
of s 73(2) of the Act and s 35(3)(f) of the Constitution. To refuse the accused's legal representative the opportunity of
conducting the bail application on his behalf would constitute an
Page 109
irregularity which could give rise to review proceedings before the High Court. [200] Where the accused has arranged to be
brought before court in order to apply for bail, or where he applies for bail in the normal course and has had the
opportunity of engaging a legal representative but has failed to do so, an application for the matter to stand over or to be
postponed until the accused has obtained representation may validly be refused. [201] (It must be noted that the accused's
right to counsel is not absolute; it may be forfeited by his dilatoriness [202] and, in certain cases, at the state's
instance. [203] The criterion applied by a court in exercising its discretion as to whether or not a matter should be postponed
to allow the accused to engage the services of counsel is the 'interests of justice'.) [204]
The effect of such refusal will not, however, be as dramatic as a refusal of legal representation at a trial. The reason is
that in a bail application such refusal may result in the astute accused withdrawing his application and reserving it for a later
date. However, if the application continues without the accused's legal representative and the court refuses bail on the
merits of the application, subsequent applications may be to no avail, unless the factual circumstances surrounding the
application and forming the basis of the first refusal have ;j changed. On the other hand, if the court refuses bail on formal
or technical grounds, for instance because the police investigation is proceeding or because the state needs time to decide
which witnesses it intends reserving as state witnesses, the position will be different, and a renewed application brought
once these matters have been resolved may well succeed. [205] From the above it appears that the accused may suffer
severe prejudice if his bail application continues in the absence of his legal representative—a situation for which the accused
may seek redress or review in the High Court. Such redress will, it is submitted, only be forthcoming if the accused shows
that good cause (in the sense of prejudice and absence of fault) existed on his part, and that the postponement of the bail
application would not have prejudiced the state. The High Court may then set aside the bail proceedings and remit the
matter to the lower court for a hearing de novo.
7.22 Record of proceedings

Section 64 of the Act enjoins the court hearing a bail application or an application for the amendment or supplementation of
bail conditions to keep a full record of proceedings. The importance of a proper record is obvious: not only will such be
required by the High Court in the event of an appeal, [206] but it
Page 110
is also of crucial importance when the cancellation of bail is being considered, [207] for it may then serve as prima facie proof
of the bail conditions imposed. [208] It is submitted that a 'full record of proceedings' must include the concessions and
information put up from the bar, for example, the prosecutor's concession that the state does not challenge the likelihood
of the accused standing trial, and the accused's representative's statement of personal facts regarding the accused. Such
statements are part of bail proceedings, which allow for a certain amount of informality, [209] and it is submitted that such
statements are received and should be recorded in the same way that they are where the parties address a court on
sentence. [210]
The lack of a full record of bail proceedings, owing to the informal procedure adopted, was obliquely criticised in S v
Nichas, [211] where Diemont J had the following to say: [212]
It is a notorious fact that in the majority of cases ex parte statements are made both by the defence and by the public prosecutor w ho
intimates w hat the police objections are. There are no formalities; no evidence is led, no affidavits are placed before the court and the
record is so meagre that there may be little or nothing to place before the Superior Court if the matter is taken on appeal. This easy-
going procedure has both advantages and draw backs.
The cryptic nature of the record was described in S v Smith [213] as 'uninformative to a degree'.
[1] Schmidt Bewysreg (1982) 67, 619 argued, without quoting authority, that bail proceedings before 1995 were administrative by nature.
[2] S v Nichas 1977 (1) SA 257 (C ) 260-1. C f Fernandez 1982 SACC 72 76.
[3] S v Nichas (above) 261.
[4] Ibid.
[5] See C h 8.
[6] The exceptions are confined to superior court applications, where some adherence to correct application procedure is still encountered.
[7] D 22.3.2.
[8] Pillay v Krishna 1946 AD 946 951.
[9] S v Ndlovu 1945 AD 369 381.
[10] Millard and Son (Pty) Ltd v Enzenhofer 1968 (1) SA 330 (T); Smith's Trustee v Smith 1927 AD 482.
[11] R v Perkins 1934 NPD 276; Leibman v Attorney-General 1950 (1) SA 607 (W); Nichas (above); S v Mbele and Another 1996 (1) SAC R 212 (W)
215f and the cases cited there. C f R v Mtatsala 1948 (2) SA 585 (E).
[12] Section 60(1) of the Act as it then stood.
[13] Steytler 1982 SACC 3 7.
[14] 1968 (2) PH H303.
[15] C f S v Hlongwane 1982 (4) SA 321 (N) 323.
[16] See, generally, C owling 2002 SACJ 176 180-8
[17] See paras 7.2-7.19.
[18] 1991 (2) SAC R 520 (T).
[19] Discussed in para 7.4.
[20] See para 7.12.
[21] 1999 (2) SAC R 51 (C C ).
[22] See, generally, S v Mohammed 1999 (2) SAC R 507 (C ).
[23] 1999 (2) SAC R 51 (C C ) para [84].
[24] Shabalala v Attorney-General, Transvaal 1995 (2) SAC R 761 (C C ).
[25] With respect, some may think the distinction to be artificial and itself unconstitutional. See also De Villiers 2003 THRHR 175; De Villiers 2003
THRHR 349.
[26] S v Josephs 2001 (1) SAC R 659 (C ) 664c.
[27] See S v Basson 2007 (1) SAC R 566 (C C ) 608ff; Van der Merwe 2001 Stellenbosch LR 215 220.
[28] 2006 (1) SAC R 603 (SC A) para [23].
[29] 1999 (2) SAC R 479 (W) 489c-d: 'Die feit dat 'n oormatige onus op die applikant geplaas is, dat bevind is dat hy nie die bewyslas gekwyt het nie,
ten spyte van die afwesigheid van weerleggende getuienis en die feit dat die applikant nie 'n redelike geleentheid gebied is tot die inligting in die
dossier nie, het in hierdie saak prakties die effek gehad dat borg vir die applikant 'n illusie geword het.'
[30] Section 50(6)(d)(iv) of the Act.
[31] Section 50(6)(d)(ii) of the Act. It would appear that, once the prosecutor informs the court that the matter is to be referred to the attorney-
general, the decision is taken out of the court's hands and the seven-day postponement is compelled by the terms of the sub-section.
[32] Section 50(6)(d)(iii) of the Act. In view of the fact that the Act requires matters falling under Schedule 6 to the Act to be heard by a regional
court, a court has no choice but to postpone a bail hearing for the seven-day period in order for the accused to be referred to the regional court.
[33] Section 50(6)(d)(v) of the Act.
[34] 2011 (1) SAC R 622 (NC K) para [21].
[35] The reported judgment refers to s 59 [sic] (6)(d)(v), which is clearly a typographical or other error.
[36] (41210/2010) [2011] ZAGPJHC 74 (19 July 2011) unreported elsewhere at the time of writing.
[37] C f Magistrate, Stutterheim v Mashiya 2003 (2) SAC R 106 (SC A) para [14], and see the discussion in para 7.6 below.
[38] See Green (above). C f Ellish v Prokureur-Generaal, WPA 1994 (2) SAC R 579, 1994 (4) SA 835 (W).
[39] C f Mbele; S v Dlamini 1999 (2) SAC R 51 (C C ).
[41] Above, paras [14]-[19].
[42] 1991 (2) SA 805 (NmHC ) 821F-H.
[43] 1996 (1) SAC R 528 (T) 531e-f.
[44] 1999 (2) SAC R 507 (C ).
[45] S v Mpofana 1998 (1) SAC R 40 (Tk).
[46] S v Acheson (above) 811F-H.
[47] 811I.
[48] 821D-E.
[49] 821I-J.
[50] 2011 (1) SAC R 34 (EC P) paras [16]-[20].
[51] See S v Geritis 1966 (1) SA 753 (W) 754C -F.
[52] Above.
[53] 2007 (2) SAC R 110 (ZH).
[54] At 112-113.
[55] 1996 (2) SAC R 122 (T) 124i-125e: 'Ek het self die prosedure en die regsposisie ten opsigte van nuwe feite by 'n borgaansoek probeer navors.
In die kort tyd tot my bestek kon ek nie enige beslissings vind nie. . . . Die vraag ontstaan wat die prosedure is wat 'n beskuldigde moet volg om
sodanige hernude aansoek voor die betrokke landdros of streeklanddros te kan bring, gegrond op nuwe feite. In hierdie besondere geval was daar
geen feite voor die landdros geplaas nie. Wat hier plaasgevind het, is bloot argument. Die een nuwe feit, sonder om na die ander te verwys, wat
genoem is in argument, is dat daar oorspronklik verskeie aanklagte teen die Appellante (agt om presies te wees) was en dat daar tans slegs een
aanklag van moord en een aanklag van roof teen die Appellant in die Hooggeregshof dien. Hierdie feit is nie by wyse van gemeensaak voor die
landdros geplaas nie.
Ek is tevrede dat in terme van art 65(2) waar 'n beskuldigde 'n hernude aansoek om borg wil bring, gegrond op nuwe feite, die feite daadwerklik voor
die landdros geplaas moet word. Daar is verskeie metodes waarop feite voor 'n landdros geplaas kan word. Dit kan voor 'n landdros geplaas word by
wyse van 'n dokument wat aandui dat dit gemeensaak is tussen die Staat en die verdediging; dit kan voor die landdros geplaas word by wyse van viva
voce-getuienis. Dit is nie die enigste twee maniere nie, maar dit is twee van die maniere.
Dan is die landdros geroepe om te besluit of hierdie feite, wat voor hom of haar geplaas is, nuwe feite is al dan nie en daarna, indien die landdros
bevind dat dit wel nuwe feite is, kan die landdros dan die hernude borgaansoek oorweeg op grond van die nuwe feite en dan kan die hof beslis of die
nuwe feite van sodanige aard is dat borg toegestaan behoort te word al dan nie.'
[56] Above.
[57] Above.
[58] 2008 (2) SAC R 355 (C ) paras [57], [58].
[59] S v Vermaas (above) 531d-e.
[60] S v Mohammed (above).
[61] S v Le Roux en Andere 1995 (2) SAC R 613 (W).
[62] 1991 (2) SA 805 (Nm).
[63] See C h 4.
[64] Packer The Limits of the Criminal Sanction (1968) 215.
[65] See C h 4.
[66] 'It seems to me that the onus is definitely . . . on the applicant to make out a case for bail . . .' Lee JC 113/47 (C ); '. . . in a case where the
C rown opposes an application for bail the onus is cast upon the accused to satisfy the court . . .' R v Mtatsala 1948 (2) SA 585 (E) 592; '. . . in the first
instance, it is for the applicant to show grounds for the exercise of discretion in his favour . . .' Leibman v Attorney-General 1950 (1) SA 607 (W) 611.
And in Sandig v Attorney-General JC 198/36 TPD it was also held that the onus is on the applicants to show good reason why bail should be granted.
[67] De Jager v Attorney-General, Natal 1967 (4) SA 143 (D) 149G.
[68] See, for example, the criticism of this approach by Eloff JP in Prokureur-Generaal van die WPA v Van Heerden 1994 (2) SAC R 469 (W) 480f.
[69] See, for example, Prokureur-Generaal van die WPA v Van Heerden (above) and the majority judgment in Ellish v Prokureur-Generaal, WPA
1994 (2) SAC R 579 (T).
[70] See, for example, S v Mbele and Another 1996 (1) SAC R 212 (W).
[71] See, for example, Magano v District Magistrate, Johannesburg 1994 (2) SAC R 304 (W).
[72] See C owling 2002 SACJ 176 190-8.
[73] See para 7.10.
[74] See McCarthy 1906 TS 657; and the C riminal Procedure and Evidence Act 1917, s 99.
[75] McCarthy (above).
[76] Act 56 of 1955, ss 87 and 88.
[77] Mbele (above) 215e.
[78] Leibman (above); Desai 1953 (2) PH H192 (N); R v Grigoriou 1953 (1) SA 479 (T); C 1955 (1) PH H93 (C ); Limbada 1955 (2) PH H196 (N); De
Jager (above); S v Maharaj and Another 1976 (3) SA 205 (D); S v Nichas 1977 (1) SA 257 (C ); S v Hlongwa 1979 (4) SA 112 (D); S v Mataboge (1)
1991 (1) SAC R 539 (B).
[79] 1948 (2) SA 585 (E).
[80] 1994 (2) SAC R 304 (W).
[81] At 306c-j. Van Blerk AJ receives strong support from Edeling J in Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SAC R 127 (O) 150-2.
[82] Above, 215h-216b.
[83] Above, 234c-f.
[84] Mbele (above) 235j-236d.
[85] Ellish v Prokureur-Generaal (above).
[86] Mbele (above) 237d-e.
[87] 1994 (2) SAC R 469 (W) 480g.
[88] Prokureur-Generaal, WPA v Van Heerden (above) 480d.
[89] Above, 591g.
[90] Above.
[91] At 147e-g: 'Myns insiens spreek dit, met eerbied, vanself dat enige persoon of instansie wat die voortgesette aanhouding van die beskuldigde
en dus die weiering van borgtog verlang nie net sodanige faktor of faktore aanhangig moet maak nie, maar ook nie sal slaag indien die hof nie bevind
of kan bevind dat geregtigheid weens die bestaan daarvaan verdere aanhouding vereis nie. In daardie sin rus daar dus wel 'n bewyslas op die Staat.'
[92] As reported in 1994 (4) SA 835 (W) 839D-841I.
[93] Ellish (above) 596e.
[94] 1998 (2) SAC R 259 (C ) 269a-f.
[95] Above, 218-221.
[96] At 232g-h.
[97] Above, 150ff.
[98] 1996 (1) SAC R 528 (T).
[99] At 530d-g.
[100] 1996 (1) SAC R 715 (T) 718a-d.
[101] Above, 269f-h.
[102] This aspect is discussed in para 7.10.
[103] See para 7.12.
[104] See paras 7.9 and 7.10.
[105] 1994 (2) SAC R 304 (W).
[106] At 306.
[107] Above.
[108] At 216.
[109] 1999 (2) SAC R 51 (C C ).
[110] At para [38].
[111] 2000 SAJHR 279 286.
[112] The '1997 amendments' are discussed in para 7.12.
[113] [1998] 1 All SA 114 (W) 115b.
[114] At 116c-f.
[115] At 117e-g.
[116] Above, para [45] n 74.
[117] Above, para [38].
[118] 1999 (1) SAC R 311 (O) 313d-f: 'Hieruit volg dit, onteenseglik, dat die landdros nie kan bevind dat die weiering van borgtog in die belang van
geregtigheid bloot is omdat daar 'n risiko of moontlikheid bestaan dat een of meer van die gevolge sal intree by vrylating nie. Die landdros kan nie in
die donker rondtas en gis en raai om tot sy bevinding te kom nie. Hy moet bevind dat dit waarskynlik sal plaasvind. Indien hy nie kan bevind dat een
of meer van die gevolge waarskynlik sal intree nie, kan hy nie bevind dat die aanhouding van 'n beskuldigde in belang van geregtigheid is nie en moet
die beskuldigde in vryheid gestel word. Dit blyk dus duidelik dat die grondliggende beginsel by die reg insake borgtog is dat die borgtog toegestaan
behoort te word behalwe waar dit nie in die belang van geregtigheid is nie.'
[119] C haskalson et al Constitutional Law of South Africa (1996) 27-17.
[120] 1999 (2) SAC R 51 (C C ).
[121] In para [77]. See also C owling 2002 SACJ 177.
[122] See paras [66] and [67]. In para [68] reference is made to 'the alarming level of crime'.
[123] In para [55].
[124] Quoted in Sarkin et al 2000 SAJHR 279 288.
[125] Sarkin et al 2000 SAJHR 279 281, 289. C ompare Francis C PD case no A981/98, 2 December 1998 (unreported).
[126] In para [68].
[127] 1995 (3) SA 391 (C C ), para [212].
[128] C onstitutional C riminal Procedure (1998) 140.
[129] The pre-1997 equivalent of s 60(11)(b) of the Act.
[130] As to the meaning of 'interests of justice', see C owling 2002 SACJ 182-8.
[131] In para [65].
[132] C f Dlamini (above); S v Tshabalala 1998 (2) SAC R 259 (C ); S v Vermaas 1996 (1) SAC R 528 (T); S v Shezi 1996 (1) SAC R 715 (T).
[133] C f S v Mbele (above).
[134] [1992] 3 SC R 711.
[135] Akin to Schedule 1 offences under the Act.
[136] [1992] 3 SC R 665.
[137] C f S v Stanfield 1997 (1) SAC R 221 (C ).
[138] 648 F 2d 1148 (1981). And cf United States v Salerno 481 US 739 (1987).
[139] See the introductory words to s 60(11) of the Act.
[140] Section 60(11)(b).
[141] C PD case no A416/2000, 18 August 2000 (unreported).
[142] 2002 (1) SAC R 222 (SC A).
[143] At para [16]: 'Namens beskuldigdes 1 en 3 is ter aanvang voor ons betoog dat die Wetgewer nie kon bedoel het dat 'n blote bewering in die
akte van beskuldiging dat 'n beskuldigde aan 'n Bylae 6 misdryf skuldig is, voldoende is om art 60(11)(a) van die Wet van toepassing te maak nie.
Volgens die betoog moet die Hof wat die borgaansoek aanhoor, self eers die feite evalueer ten einde te bepaal of die Staat by die verhoor 'n Bylae 6
misdryf sal kan bewys, voordat art 60(11)(a) toepassing vind. Ek kan nie met die betoog saamstem nie. Die bewoording van die subartikel is duidelik
en ondubbelsinnig en is vir net een uitleg vatbaar. Dit is dat die formulering van die aanklag in die akte van beskuldiging, indien nodig aangevul deur 'n
skriftelike bevestiging ingevolge art 60(11A), beslissend is vir die vraag of 'n beskuldigde hom van die bewyslas in art 60(11)(a) moet kwyt om sy
vrylating op borgtog te verkry.'
[144] Bail—A Practitioner's Guide 2 ed (2001) 69.
[145] In one unusual instance the contents of paras 7.16 to 7.18 apply to Schedule 5 offences, namely where the accused is out on bail in respect of
a Schedule 5 offence, and is then arrested for a Schedule 5 offence committed whilst he was on bail.
[146] Dlamini (above).
[147] Dlamini (above) paras [61], [78], [79]. See also S v Mohammed 1999 (2) SAC R 507 (C ).
[148] Dlamini (above) paras [74]-[76].
[149] Above. See also Dlamini (above) para [74].
[150] Above, para [76].
[151] Above.
[152] Above, para [76] n 102.
[153] Since reported as S v C 1998 (2) SAC R 721 (C ).
[154] Mohammed (above).
[155] Above, 723d.
[156] Above, 723h: 'Die gewone omstandighede—dié wat ek hierbo aangestip het—is nou skynbaar nie meer genoeg nie. 'n Beweerde oortreder
moet nou aangehou word al kan hy klinkklaar bewys dat hy sy verhoor sal bywoon, nie by die regspleging sal inmeng nie, en nie verder kwaad sal
doen nie. Kan dit werklik wees dat die Wetgewer bedoel het dat 'n verhoorafwagtende vir sy vrylating iets méér moet bewys—iets wat geen rasionele
verband hou met die primêre oogmerk van borgverlening dat 'n beskuldigde sonder belemmering van die regspleging mettertyd sy verskyning voor
die hof moet maak nie? . . . Die problematiek in art 60(11) van die Wet word, wat die onderhawige saak betref, veroorsaak deur die uitdrukking
'buitengewone omstandighede'. Artikel 60(11) mag in die gees van die Grondwet en die gemene reg nie gelees word om méér van 'n
verhoorafwagtende te vereis as om die gewone omstandighede wat hierbo genoem word te bewys nie. Die oomblik wat méér vereis word, word daar
bestraffend opgetree. Dit sou geheel en al verwerplik wees. Al wat die wetgewer myns insiens dus op 'n onbeholpe wyse bepaal het, is dat 'n hof by
Bylae 6 misdrywe buitengewone versigtigheid aan die dag moet lê wanneer daar na gewone omstandighede gekyk word.'
[157] 725d-e: 'Dit is waarskynlikhede wat die deurslag gee. In die geval van 'n Bylae 6 misdryf moet die hof met 'n hoë mate van sekerheid kan
bevind dat 'n verhoorafwagtende gaan doen wat daar kragtens sy borgvoorwaardes van hom verwag word. Dit is al.'
[158] 2000 (2) SAC R 371 (Tk).
[159] Above, para [76].
[160] C PD case no A714/98, 1 October 1998 (unreported): '. . . [N]amens die beskuldigde [is] betoog dat, by oorweging van die vraag of
buitengewone omstandighede aangetoon is al dan nie, die kumulatiewe effek van al die omstandighede van elke besondere geval beoordeel moet
word en nie elke individuele omstandigheid afsonderlik nie, soos wat die Landdros in die huidige geval gedoen het. Ek is dit met hierdie betoog eens.
Dit is na my oordeel die enigste sinvolle en logiese benadering tot die onderhawige bepaling. Dit verleen erkenning aan die basiese feit dat, alhoewel 'n
reeks individuele faktore, afsonderlik geneem, moontlik nie buitengewoon mag wees nie, dit wel buitengewoon mag wees om hulle gelyktydig en
gesamentlik in kombinasie aan te tref.' The same approach was taken by Labe J in S v H 1999 (1) SAC R 72 (W): 'What a court is called upon to do is to
examine all the relevant considerations . . . as a whole, in deciding whether an accused person has established something out of the ordinary or
unusual which entitles him to release under s 60(11)(a).'
[161] 2010 (1) SAC R 433 (KZP).
[162] Above.
[163] 1998 (2) SAC R 673 (SE) 678g-i.
[164] C PD case no A981/1998, 2 December 1998 (unreported).
[165] An anti-drug pressure group, referred to as 'vigilante' by Navsa JA in S v Thebus 2002 (2) SAC R 566 (SC A).
[166] See Viljoen 2002 (2) SAC R 550 (SC A) para [12].
[167] 1998 (2) SAC R 677 (SE).
[168] At 679e-h.
[169] At 678e-g.
[170] See for instance S v Mauk 1999 (2) SAC R 479 (W) 486i-j; Mohammed (above) 517i-j; S v Yanta 2000 (1) SAC R 237 (Tk) 247b-c; S v Josephs
2001 (1) SAC R 659 (C ) 667a-g.
[171] 2002 (1) SAC R 222 (SC A) para [21].
[172] Above.
[173] 2010 (1) SAC R 55 (SC A).
[174] Above, paras [11]-[13].
[175] (A 468/11) [2011] ZAGPJHC 185 (7 December 2011).
[176] 2005 (2) SAC R 14 (C ) (unreported on this aspect).
[177] In most metropolitan prisons there are simply no adequate facilities for proper consultations to be held: in some, consulting through a glass
partition does not allow proper exchange of documentary exhibits, while cubicles have single built-in seats in confined spaces, thus not permitting the
presence of both attorney and counsel; in others, hours of consultations have to be conducted in unsheltered exercise yards in rain, scorching sun and
howling wind. These conditions are not conducive to the proper preparation of the accused's defence. It does not seem to be a consideration of any
importance to trial courts that the accused—denied bail and awaiting trial in custody for perhaps three or four years, deprived of the support and
comfort of his family in his home environment on a daily basis, compelled to rise before first light to be transported to court, and receiving his first
meal of the day at 1 p.m. in the court cells—when testifying in such circumstances is likely to compare unfavourably with state witnesses. Proper
preparation is a factor which, when coupled with freedom and the confidence-boosting effect of home comforts, may transform the accused into a
witness who may indeed establish his case and secure his acquittal far more easily than the incarcerated awaiting-trial accused.
[178] 2002 (2) SAC R 550 (SC A) para [25]: '[Daar moet] teen gewaak word om van elke borgaansoek 'n uitgerekte verhoor voor die strafverhoor te
maak. Neem as voorbeeld die onderhawige geval, waar daar herhaalde verklarings van die appellant was dat hy wel sy eggenote vermoor het en dit
nou probeer ontsenu deur aan te voer dat hy deur polisie-beamptes aangerand en gedwing was om dit te doen. Moet, op die borgstadium, die
beskuldigde viva voce-getuienis aflê wat deur viva voce weerleggende getuienis van een of meer polisie-beamptes weerlê moet word? Dieselfde toneel
sal hom, binne korter of langer tyd, voor die Verhoorhof afspeel. Kon dit ooit die bedoeling van die wetgewer gewees het dat borgaansoeke 'n volle
kleedrepetisie van die verhoor moet wees? Ek betwyfel dit ten sterkste. Ek sou dus oordeel dat die verhoor van borgaansoeke binne redelike perke
gehou moet word onderhewig aan die bepalings van die Wet en die regte van die beskuldigde.' See also Mooi (162/12) [2012] ZASC A 79 (30 May
2012) and para 9.4 below.
[179] Above.
[180] See text at n 170.
[181] See above.
[182] SA Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C ) 34.
[183] 1985 (3) SA 587 (N) 590-1.
[184] 2002 (1) SAC R 222 (SC A) para [16].
[185] In para 7.15 above.
[186] Thus it may be said that, in this instance, '5 plus 5 equals 6'.
[187] C f the remarks of Van Heerden J (as she then was) in Okoye C PD case no A416/2000, 18 August 2000 (unreported) 6.
[188] 2010 (1) SAC R 262 (SC A).
[189] At para [8].
[190] See para 7.15 above and cases cited there.
[191] Above.
[192] C f S v Price 1973 (2) PH H92; S v Hudson 1980 (4) SA 145 (D) 148.
[193] Nichas (above) 263. See also paras 7.3 and 7.4.
[194] C f S v Essack 1965 (2) SA 161 (D).
[195] C ompare the position in the former Bophuthatswana and cf Smith v Attorney-General, Bophuthatswana 1984 (1) SA 196 (B). See also Naidu
1985 Obiter 94 99-100.
[196] For a full discussion, see C h 8.
[197] See s 60(2)(b) and (c) and s 60(3) of the Act.
[198] In C h 8.
[199] C ompare legal representation extra-curially, para 5.6 above.
[200] For a discussion of appeals and reviews in respect of bail applications, see C h 15.
[201] See Van der Berg 1984 THRHR 447 450-5 and cases cited there.
[202] S v Second 1970 (1) PH H5 (RA); R v Hertzog 1970 (2) SA 578 (T); S v Nongila 1970 (3) SA 97 (E).
[203] Ex parte Hathorn 1960 (2) SA 767 (D); Brink v Commissioner of Police 1960 (3) SA 65 (T).
[204] R v Zackey 1945 AD 505 511; Isaacs v University of the Western Cape 1974 (2) SA 409 (C ) 411; Estate Norton v Smerling 1936 OPD 44. For a
full discussion of the topic, see Van der Berg 1984 THRHR 447 450-7; Lansdown & C ampbell South African Criminal Law and Procedure vol v (1982)
362-5; Steytler Constitutional Criminal Procedure (1998) 157ff.
[205] See para 7.7.
[206] See C h 15.
[207] See C h 12. See also Ferreira Strafproses in die Laer Howe (1979) 208.
[209] See ss 60(2)(b) and 60(3) of the Act.
[210] The general exclusion of ex parte statements from the record of proceedings—see R v Khalpy 1958 (1) SA 291 (C )—should therefore not apply
to bail proceedings.
[211] 1977 (1) SA 257 (C ).
[212] At 260.
[213] 1969 (4) SA 175 (N) 176. And see, generally, S v Ho 1979 (3) SA 734 (W).
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8
The rules of evidence in bail hearings
8.1 Introduction
The informal nature of extra-curial proceedings [1] and the relative informality of bail proceedings in court [2] are discussed
elsewhere. Thus, it was noted above that the accused, in applying for police bail, for instance, is not entitled as of right to
present evidence, nor is the police official having jurisdiction required to observe the rules of evidence applicable to court
proceedings. On the other hand, the accused who applies for bail in court is permitted, in practice, to rely on ex parte
statements made by his counsel and to present evidence in support of his application, be it in rebuttal of the state's
evidence or in the discharge of an onus, both orally and by way of affidavit. [3]
While it is clear that both the accused and the state are in practice permitted to lead evidence in bail applications, the
question arises whether the presentation of evidence is a right on which the parties to a bail application may insist, and if
so, whether such right is well founded in law. In S v Malcolm [4] De Bruyn AJ held that a magistrate's refusal to allow the
accused to testify in support of her application for bail pending appeal [5] against an order declaring her a 'State President's
patient' [6] was grossly irregular. This dictum is manifestly correct.
Another question arising is whether the normal rules of evidence apply to evidence led in bail applications. This aspect was
touched upon in S v Dlamini [7] where the Constitutional Court said the following:
[11] Furthermore, a bail hearing is a unique judicial function. It is obvious that the peculiar requirements of bail as an interlocutory
and inherently urgent step w ere kept in mind w hen the statute w as drafted. Although it is intended to be a formal court procedure, it
is considerably less formal than a trial. Thus the evidentiary material proffered need not comply with the strict rules of oral or written
evidence. (Emphasis added.)
The questions posed above are addressed in the following paragraphs.
8.2 The right to present evidence

It is trite that the parties to criminal proceedings are entitled to present their respective cases by leading supportive
evidence. Furthermore, it may be
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accepted as a general hypothesis that all evidence presented at criminal proceedings is subject to the exclusionary rules of
evidence of the common law (as repeated in the Act). Are bail applications 'criminal proceedings'? As was noted above, [8]
police bail proceedings and bail proceedings before the attorney-general or an authorised prosecutor are in the nature of
administrative proceedings, and must therefore fall outside the definition of 'criminal proceedings' or, for that matter, judicial
proceedings. Bail applications made in court are manifestly on a different footing: they are not conducted before an
administrative organ or a quasi-judicial tribunal which happens to be presided over by a judicial officer. Section 50(6) of the
Act unequivocally refers to the accused's right to be brought before 'a lower court' for consideration of his bail application.
Similarly, s 50(7) of the Act deals with the accused's right to be brought before 'an ordinary court of law to be charged
and enabled to institute bail proceedings'. Section 60(1) of the Act also consistently refers to 'courts' in the context of bail
hearings. Reference is also made to the fact that bail applications may be heard by 'the court' before which a charge is
pending. [9] The definitions clause of the Act is not of much assistance: it cryptically declares that 'criminal proceedings'
include preparatory examinations, and makes no reference to bail proceedings. [10] This does not mean that, by implication,
bail applications are not so included. It is submitted that the perceived need expressly to include preparatory examinations
arose because such examinations do not require the court to bring out a finding; neither are such examinations truly
adversarial proceedings. They are examinations, and no more. Bail applications, on the other hand, are akin to trials in that
they are adversarial proceedings culminating in a finding and discretionary order by the court, which affects the rights of the
accused.
It is arguable that 'criminal proceedings' include all proceedings where a person is exposed to action in the name of the
criminal justice system which could prejudice him, and that bail applications are not excluded. To approach the question
from another angle: if bail applications were not 'criminal proceedings', the accused would not in terms of the Act be entitled
as of right to be legally represented during his bail application, for the Act offers that right only at 'criminal proceedings'. [11]
Can it be doubted that the accused may, in terms of the Act, lay claim to the right to be legally represented during his bail
application? [12] Similarly, the exclusion by the Act of evidence that is irrelevant to an issue in 'criminal proceedings' [13]
surely applies equally to bail applications, for it cannot be seriously suggested that irrelevant evidence may be properly
received during such applications, as it could not assist in the adjudication of the bail application.
Page 113
It is accordingly submitted that unequivocal suggestions to the contrary in recent decisions, [14] though authoritative, are
not necessarily strictly correct, although they offer some comfort in describing bail proceedings as sui generis
'(undoubtedly) judicial proceedings' [15] as opposed to 'administrative pro-ceedings'. [16]
As will be seen, the designation of bail applications is of some importance, for the admissibility of evidence may turn on
the question whether or not bail applications are 'criminal proceedings' or, at least, 'judicial proceedings'.
In the succeeding paragraphs the approach of our courts, in practice, to the question of the admissibility of evidence such
as hearsay, opinion, similar fact, character evidence and privileged evidence will be discussed.
8.3 Hearsay evidence

Hearsay evidence—that is, evidence of a statement made by a person otherwise than in giving evidence and which is
tendered as proof of the contents of the statement, is excluded by the incorporation of the English exclusionary rule into s
216 of the Act. The section does not make mention of any type of proceedings. The basis for excluding hearsay evidence is
the fact that the statement relied upon emanates from a non-witness, which means that its accuracy, context and veracity
cannot be tested by means of cross-examination. Thus, subject to statutory exceptions created in 1988, [17] even relevant
evidence of a hearsay nature is excluded altogether, but a more satisfactory approach is clearly to admit such evidence and
to accord it less weight on account of the fact that it has not been tested. [18]
The basic common sense of the latter approach has somewhat unobtrusively led to the admission of hearsay evidence in
bail applications—long before any statutory authority was passed for such a practice. Despite the fact that the practice has
spontaneously developed in the absence of any authority, it is never questioned. [19]
Section 3 of the Law of Evidence Amendment Act [20] now provides for the discretionary admission of hearsay evidence,
and it is submitted that its ambit should extend to proceedings such as bail hearings. To suggest, however—as Froneman J
does in S v Maki and Others [21] and Jennett J does in S v Ndjadayi [22]—
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that bail hearings are civil proceedings and that hearsay evidence is accordingly for that reason admissible in terms of s 3 of
that Act, is unconvincing even though the suggestion may be attractive. [23]
In availing themselves of their freedom to receive hearsay evidence in bail hearings, our courts often lose sight of the fact
that whereas some hearsay evidence may be helpful as it assists in providing a flowing narrative, it is often in the nature of
speculation or rumour, and is therefore neither relevant nor helpful. For hearsay to be helpful in the process of adjudicating
a bail application, it must be relevant and also reliable. Thus, writing on the American experience, LaFave and Israel
state: [24]
Information received at a bail hearing need not conform to the rules pertaining to the admissibility of evidence at a trial. How ever, this
should not be taken to mean that information must be accepted by the court without regard to its reliability. Thus, w hether hearsay is
admissible in a bail hearing must ultimately be determined on a case by case basis by asking w hether in the particular circumstances
it is the kind of evidence on w hich responsible persons are accustomed to rely in serious affairs. (Emphasis added.)
This sensible approach is strongly supported.
8.4 Basis for the admission of hearsay evidence

It has been suggested [25] that hearsay evidence is admitted in bail applications because the presiding officer entertains
such applications in the discharge of an administrative function, and is therefore not bound by rules of evidence. The
suggestion merely needs to be stated in order to be rejected: bail applications are not heard by administrative organs but
by courts of law. [26] Thus Froneman J said in S v Maki and Others: [27]
Prima facie the nature of the evidence deemed admissible in bail applications does not conform w ith their categorisation as either
criminal or civil proceedings. The rules regarding the admissibility of hearsay evidence, character evidence and proof of previous
convictions in bail
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applications are not alw ays consistent w ith the ordinary rules of the law of evidence. (Compare Van der Berg Bail, A Practitioner's
Guide (op cit at 88-92).) That how ever does not necessarily mean that bail applications are not judicial proceedings or that the finding
in a bail application is not a judicial act but rather an administrative act. Essentially, judged simply by formal criteria, the procedure
and finding in a bail application are judicial by nature, as the application takes place in a court of law . But in terms of material criteria
they are also judicial by nature, namely a decision in respect of a legal issue betw een parties concerning a fundamental right (the
liberty of a person), to w hich effect is given after the court's finding. (See W iechers Administratiefreg 2 ed at 104-16.)
The argument that hearsay evidence is received in bail applications on account of the urgency of such proceedings [28] (by
analogy with urgent applications in civil law) is equally unconvincing. In civil law the hearsay statement is usually tendered by
the applicant in support of his application for relief (that is, it operates to the applicant's advantage in that it facilitates his
quest for a remedy); in bail applications the hearsay statement is usually tendered by the state to present the state's case
on the merits or to illustrate some unlawful intention on the accused's part, for example, that he plans to abscond, or is
rumoured to be contemplating the intimidation of a witness (that is, the state resorts to it to the applicant's detriment, in
that it is aimed at frustrating his efforts to obtain a remedy). It is anomalous to suggest that a bail application should be
heard as a matter of urgency so the accused will not be prejudiced, but to allow evidence which would otherwise be
excluded and which does prejudice the accused, for the very reason that the matter is urgent. Any sensible accused would
waive the urgency of the matter and put the state to the proof of its allegations by means of admissible evidence.
In truth there seems to be no authoritative basis for allowing hearsay evidence in bail applications, and it is tentatively
suggested that the practice may have evolved on policy grounds owing to the sui generis nature of the proceedings.
Froneman J in S v Maki and Others, [29] having come to the conclusion that bail applications are neither criminal nor
administrative proceedings, adopts a novel if unconvincing approach in holding that bail applications are in the nature of civil
proceedings, and that hearsay evidence is therefore admissible in such proceedings by virtue of the provisions of s 3 of the
Law of Evidence Amendment Act. [30]
8.5 Opinion evidence

Opinion evidence is usually excluded on the dual grounds that it is not sufficiently relevant to the issue and that such
opinion may usurp the function of the court. However, despite the fact that irrelevant evidence is excluded by s 210 of the
Act and that our courts have jealously guarded their preserve by rejecting opinion evidence when proffered at a level of
usurping the court's function, the practice has developed in bail applications of admitting opinion
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evidence given by the investigating officer in the case. [31] The suggestion made by Froneman J in S v Maki and Others [32]
to the effect that opinion evidence—for example with regard to the possibility of the accused tampering with state witnesses
—may be admissible according to the ordinary rules of evidence on account of its high degree of relevance is, with respect,
not given unqualified support. In terms of s 60(4)(c) of the Act (to take the learned judge's example) a likelihood of
tampering must be shown [33] —and this standard of proof, it is submitted, may not be established on the strength of a
mere opinion unless, of course, it is well-grounded on proved facts.
8.6 Basis for the admission of opinion evidence

There seems to be no legally authoritative basis for the admission of opinion evidence in bail applications. However, the
investigating officer's mere opposition to the grant of bail represents the logical inevitability that, in his opinion, the accused
represents a bail risk. [34] For that reason alone the exclusionary rule had to be relaxed. This does not imply that the mere
fact of the investigating officer's opposition, or such fact coupled with the bald averment that, in his opinion, the accused
represents a bail risk, should be acceptable evidence. Thus it was said in S v Joone: [35]
As regards bail w e find increasingly that prosecutors and even magistrates allow themselves to be used as mere rubber stamps for
the opinion of the police as to w hether or not bail should be granted, as w ell as the amount of bail. The dangers of such an approach
are obvious. A strictly independent adjudication of the facts of each case should be made by the presiding officer, including a careful
evaluation of the circumstances of each accused, the seriousness of the crime, and the interests of the community. The investigating
officer's view is clearly a relevant consideration but it is not the only and not even the most important one that should weigh with a Court
with regard to the question whether or not an accused ought to be released on bail and what the amount of bail ought to be. (My
translation; Emphasis added.)
It is submitted that such opinion evidence would in the majority of cases be suspect owing to a police investigator's interest
in the outcome, and may be admitted only if it is supported by a basis comprising reasons for the opinion; [36] and such
reasons should, in turn, be based on evidence, whether direct or
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indirect. [37] In Ugochukwu [38] it was pointed out by Waglay J that caution ought to be exercised in respect of potentially
biased opinions apparently expressed gratuitously by investigating officers:
On the evidence presented, the magistrate after correctly finding that the charge preferred against the appellant w as a serious one
and not holding the fact that appellant w as a foreigner against him, took into account that there w as doubt as to appellant's fixed
abode. This, together w ith the State's reasonable suspicion that the appellant w as a flight risk, concluded that the appellant may
evade justice by not facing his trial. However, this decision by the presiding officer is based on the evidence of an investigating officer
whose predisposition to object to appellant being granted bail is tainted, not by the interests of justice, but by a horrifying mix of racism,
xenophobia and a desire that the appellant simply remain in custody. This evidence taints the real issues. But for the gratuitous statements
made by the investigating officer I would have had no hesitation in dismissing the appeal. I cannot do so because I am uncertain if their
opposition to bail is based on a genuine desire to protect the interests of justice or personal prejudices.' (Emphasis added.)
In Van Vuuren [39] the accused was twice refused bail by a lower court, primarily by virtue of his breach of a family violence
protection order. The magistrate appears to have relied upon a psychological opinion proffered by the state in response to
one furnished by a prison psychologist. On appeal, Van Oosten J refused to follow the opinion expressed by the state's
expert:
[6] This brings to the fore the view expressed by Brig Labuschagne w hich w as heavily relied on by the court quo as a ground for
refusing bail, that 'any individual w ho has already exhibited a tendency to ignore legal restrictions, such as protection orders, poses a
high risk to ignore other legal restrictions, such as bail or parole conditions'. I do not think that the view can unreservedly be
accepted in the circumstances of this case: Labuschagne has not interview ed the appellant, he has evidently not considered the
lapse of time betw een the protection order and the incident and moreover in particular, the conduct of the appellant outside the
sphere of a strained relationship. In this regard an affidavit by the employer of the appellant w as filed stating that the appellant
maintained sound inter w ork relationships w ith staff members and that he coped w ell under stressful circumstances. I am accordingly
not prepared to accept as a generalised conclusion that the appellant constitutes a high risk of evading trial.
In the process the learned judge clearly applied the rules of evidence in a proper and reasoned manner, without relaxing
those rules for the purpose of sui generis bail proceedings. Although, theoretically, the state expert's view had much to
commend it, it is submitted that the High Court's approach ensured that justice was done to the accused.
8.7 Similar fact evidence

The rule whereby similar fact evidence is generally excluded relates only to the use of such evidence to show the accused's
propensity or disposition, but not its
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use for other purposes. If it is relevant for any other reason, similar fact evidence is not excluded. [40] In bail applications,
however, a practice has evolved which allows evidence to be led of similar fact, relating to the accused's past
misdemeanours, for no other reason than that the accused has a propensity for committing such acts. [41] This practice has
become firmly established in spite of the further express prohibition in s 211 of the Act, which ostensibly relates to bail
applications as well. [42] Thus, evidence of the accused's previous convictions is a common feature of bail applications and
has become mandatory since the introduction of the current bail regime.
8.8 Basis for the admission of similar fact evidence

In bail applications the common-law rule excluding similar fact evidence of propensity to commit certain crimes is disregarded
in favour of the view that in the bail inquiry the accused's past conduct may be highly relevant as a factor determining risk.
As is noted elsewhere, [43] it is permissible for a court hearing a bail application to take into account the accused's criminal
record in coming to its decision. The reason for this departure from the common-law exclusionary rule relating to trials is
that, in a trial, evidence of the accused's criminal record could prejudice his case on the merits. Also, in bail applications the
fact of the accused's previous convictions is highly relevant as a factor indicating the risk of abscondment (for they may
indicate the severity of the sentence the accused could expect, which in turn might induce him to abscond) [44] and the risk
of the accused repeating his crime while on bail. [45] Equally, if not more, relevant is the accused's track record while on bail
in previous matters: should he have a chequered history of complying with his bail conditions, that would be of crucial
importance to the court hearing the bail application, as the court is expected to project the future and can do so with
greater efficacy if there is a bail history to go by. Similarly, of course, and for the same reason, an exemplary bail history will
benefit the accused.
However, this circumvention of the common-law rule does not simultaneously bypass the ostensible exclusionary rule in s
211 of the Act, which reads that 'evidence shall not be admissible at criminal proceedings in respect of any offence [46] to
prove that an accused at such proceedings has previously been convicted of any offence . . .'. It is submitted that the
section's exclusionary rule does not apply to bail applications: while it has been contended elsewhere that bail applications
are in essence 'criminal proceedings', they are certainly not
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'criminal proceedings in respect of any offence'. [47] Section 211 of the Act is therefore not an impediment to the admission
of evidence of previous convictions in bail applications.
The enactment [48] of s 60(11B) of the Act not only concretises the practice described above, but furthermore places
certain duties on the applicant for bail and on his legal representative. The relevant portion of the sub-section reads as
follows:
(11B)(a) In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court w hether—
(i) the accused has previously been convicted of any offence; and
(ii) there are any charges pending against him or her and w hether he or she has been released on bail in respect of those
charges.
(b) W here the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph (a), w hether in
w riting or orally, the accused shall be required by the court to declare w hether he or she confirms such information or not.
...
(d) An accused w ho w ilfully—
(i) fails or refuses to comply w ith the provisions of paragraph (a); or
(ii) furnishes the court w ith false information required in terms of paragraph (a), shall be guilty of an offence and liable on
conviction for a fine or to imprisonment for a period not exceeding tw o years.
It may thus be seen that the revelation of the accused's previous record is recognised by the legislature as forming an
important part of the body of information which a court will consider when deciding on the question of bail. [49] The practical
necessity for the above-quoted provisions no doubt stems from the fact that bail applications are almost invariably brought
before an accused person's criminal record has become available. (It is a well-publicised fact that the prosecution services
are currently not equipped with such a data base and lack the necessary computer resources to gain access to such
information at the push of a button.)
8.9 Character evidence

In our law character evidence to the detriment of the accused is excluded by the English exclusionary rule, which is
incorporated by s 227 of the Act (without
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reference to any type of proceedings). The reason for the rule is the slender relevance of such evidence, coupled with the
inordinate prejudice it could cause the accused on the merits. This rule notwithstanding, evidence of the accused's bad
character is admitted by our courts in bail applications. [50]
8.10 Basis for the admission of character evidence

The exclusion of character evidence at common law on the admirable ground of prejudice is not equally well-founded when
applied to bail applications, for there is little chance of prejudice arising in respect of the accused in a bail application simply
because he is a bad egg. However, for character evidence to be admissible in bail applications it must be relevant to the
issue. [51] Primarily at issue are the accused's propensity for crime and his previous convictions. [52] This being the case, the
Constitutional Court in Carmichele v Minister of Safety and Security [53] placed a duty on prosecutors to bring such relevant
evidence to the court's attention, on pain of being held liable if a failure to do so leads to the unjustified release of an
accused and the damages suffered by members of the public in consequence thereof. In a joint judgment by Ackerman and
Goldstone the following was held: [54]
[73] In considering the legal duty ow ed by a prosecutor either to the public generally or to a particular member thereof, a court
should take into account the pressures under w hich prosecutors w ork, especially in the magistrates' courts. Care should be taken not
to use hindsight as a basis for unfair criticism. To err in this regard might w ell have a chilling effect on the exercise by prosecutors of
their judgment in favour of the liberty of the individual. There are far too many persons aw aiting trial in our prisons either because
bail has been refused or because bail has been set in an amount w hich cannot be paid. W e can do no better in this regard than refer
to the follow ing passage w hich appears in the United Nations Guidelines on the Role of Prosecutors:
'In the performance of their duties, prosecutors shall:
(a) . . .
(b) Protect the public interest, act w ith objectivity, take proper account of the position of the suspect and the victim and pay
attention to all relevant circumstances, irrespective of w hether they are to the advantage or disadvantage of the suspect;
. . . .'
[74] That said, each case must ultimately depend on its ow n facts. There seems to be no reason in principle w hy a prosecutor w ho
has reliable information, for example, that an accused person is violent, has a grudge against the complainant and has threatened to
do violence to her if released on bail should not be held liable for the consequences of a negligent failure to bring such information to
the attention of the Court. If such negligence results in the release of the accused on bail w ho then proceeds to implement the threat
made, a strong case could be made out for holding the prosecutor liable for the damages suffered by the complainant.
But his general bad character may be of particular importance in assessing the accused as a bail risk. Thus, for instance, his
inability to maintain employment,
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or his abusive treatment of his children which cost him custody of them, or his philandering, or his constant evasion of his
landlords or the maintenance court may all be indicative of the accused's lack of stability and community ties, which in turn is
relevant to the risk of abscondment. Equally relevant would be evidence of the accused's good character, aspects of which
may prove to be cogent factors in the assessment of bail, depending on the nature of the charge and/or the risk alleged by
the state. An unblemished history of non-violence, the integrity to observe his duties and obligations towards others, a
single-minded dedication to work and provide for his family, and his devotion as a father figure to his family, may all be
factors favourable to the accused when the court comes to adjudicate his application.
8.11 Admissions and confessions

The admissibility in criminal proceedings of admissions and confessions made by an accused person is governed by ss 217
and 219A of the Act, suitably amplified by the common law. In essence, both statute law and the common law require that
admissions and confessions, in order to be admissible against an accused person, should have been made voluntarily. In a
long line of cases the rationale for this requirement has been variously expressed to be the desire to ensure that
admissions and confessions are reliable evidence, [55] to discourage reprehensible police practices, and that it would not be
in accordance with justice to convict the accused on the basis of a self-incriminating statement obtained from him by
improper means. [56] In bail applications, however, the fact that an admission or confession has not been proved to have
been voluntarily made will not lead to its exclusion from the body of evidence, nor will the customary trial-within-a-trial be
held to determine the voluntariness or otherwise thereof. The reason for this approach in practice is the high degree of
relevance of an admission or confession to the assessment of bail risks and, needless to say, their role in establishing the
degree of incentive which the accused may have to abscond, to interfere with witnesses, or to destroy physical evidence.
Thus, in Saloman [57] the accused had made a confession, the recording of which was videotaped while his attorney sat
mute, observing proceedings. At his subsequent bail application his attorney, bizarrely and over the magistrate's attempts
to discourage him, insisted on handing in the confession, under cover of an affidavit deposed to by the accused, to
'demonstrate that the accused co-operated with the police' by confessing and not contesting the admissibility of his
confession, and accordingly should be granted bail! The attorney's later
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objection to the court taking into account the confession against his client was predictably dismissed both by the magistrate
and on appeal to the High Court.
The fact that such an admission or confession may ultimately not be admissible against the accused at trial, does not
usually affect the cogency thereof in proceedings where a judicial discretion is required to be exercised on wholly different
considerations than those that arise at trial. [58] One instance, however, where the reasonable possibility of the admission or
confession being excluded at trial may redound to the accused's benefit in a bail application, is the fact such exclusion will
diminish the strength of the state's case at trial—and thus also the incentive for the accused to avoid standing trial.
8.12 The privilege against self-incrimination

The privilege against self-incrimination is very much in operation during the bail hearing, a reality which is recognised daily by
both lower and superior courts. Curiously, however, our (then) highest court has not always expressed itself unequivocally
in favour of this reality. Thus, in Venter [59] (where it was held that the accused's self-incriminating evidence at the bail
hearing was admissible at his trial) the following was said:
Before us, it w as submitted on behalf of the appellant that the evidence w as w rongly admitted [at the trial]. I disagree. I am not sure
that the privilege against self-incrimination applied to the situation at all. But even if it did, the evidence w as correctly admitted. [60]
(Emphasis added.)
And in S v Nomzaza [61] the following was said:
Assuming that the respondents enjoyed protection against self-incrimination, I am of the view that they w aived such w hen, in chief, they
deliberately, in order to obtain bail, declared that they w ere pleading guilty. They w ere, as already mentioned, legally represented,
and all indications are that they w ere aw are of the burden of proof and the general privilege against self-incrimination. (My
translation)
The privilege against self-incrimination is embodied in the maxim nemo tenetur se ipsum accusare, which has been
explained as follows:
[T]he rule is that no one is bound to answ er any question if the answ er thereto w ould, in the opinion of the Judge, have a tendency
to expose the deponent to any criminal charge, penalty or forfeiture w hich the Judge regards as reasonably likely to be preferred or
sued for. This rule w as laid dow n by the Queen's Bench in R v Boyes [(1861), IB&S 311], and the w ords in w hich I have stated it are
those of Stephen J in Lamb v Munster [(1882), 10 QBD 110]. [62]
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The common-law rule against self-incrimination has been given statutory recognition in s 203 of the Act with regard to
criminal proceedings. [63] While the privilege attaches to the witness (and generally must be claimed by him), [64] the witness
must obviously be aware of the existence of the privilege in order to exercise it. Thus, it is the presiding officer's duty to
inform a witness of his right to decline to answer an incriminating question. Generally speaking, non-observance of the
aforesaid duty by a presiding officer would constitute an irregularity 'which ordinarily will render the incriminating evidence
inadmissible in a prosecution against the witness', [65] although such effect will not 'always and inevitably' follow upon non-
observance of the aforesaid duty. [66] Thus, the following was held in S v Lwane: [67]
The effect of non-observance of that rule upon the admissibility in subsequent proceedings of an incriminating statement made by an
uncautioned w itness falls, in my judgment, to be determined upon the particular facts of the case. In any such enquiry, the nature of
the incriminating statement and the ascertained, or presumed, know ledge of his rights by the deponent w ill alw ays be important
factors.
And in Nomzaza [68] it was held that the fact that the accused were legally represented suggested that they were aware of
the onus and the general privilege against self-incrimination. [69]
When called upon to decide whether or not to exercise his privilege against self-incrimination, the accused is faced with an
exquisite dilemma: does he invoke the privilege, and thereby conceivably jeopardise his prospects of being granted bail; or
does he waive the privilege, thereby running the risk of incriminating himself and thus contributing to his own downfall at his
subsequent trial? This aspect is discussed in the following paragraph.
8.13 Admissibility of bail record at subsequent trial

There is a general common-law rule of evidence that all relevant evidence shall be admissible in criminal proceedings unless it
is excluded by any particular exclusionary rule. [70] The American approach is instructive with regard to the issue: [71]
Defendant's ow n testimony regarding the crime may be critical to a court's determination w hether he should be set free pending trial.
Since the 'law favours the release of defendants
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pending determination of guilt or innocence', a defendant should be encouraged to testify at a hearing on a motion to set bail without
the fear that what he says may later be used to incriminate him . . . Both the purposes of the bail hearing to insure defendant's
appearance and the strong policy of our law to avoid unnecessary deprivation of liberty require that the defendant's testimony at the
bail hearing in this case be excluded from evidence at his later trial. (Emphasis added.)
The judgment is described by La Fave and Israel [72] as 'an enlightened view'—indeed, a view which harmonises with that of
Myburgh J in S v Botha [73] (to which a return is made below). However, as is the case in South Africa with the judgment in
S v Botha, the 'enlightened view' expressed in S v Williams did not find universal favour in the United States of America.
Thus, in Simmons v United States, [74] the Supreme Court had seemingly justified the subsequent admissibility of the
accused's evidence given at his bail hearing on the grounds that—
a defendant at a bail bond hearing need not divulge the facts in his case in order to receive the benefits of the eighth amendment
right to bail.
[75]
Interestingly, that is an approach also adopted in South Africa pursuant to the Act's injunction [75] that the accused should
be warned that the evidence he gives at the bail hearing may be used against him, and becomes admissible, at trial. [76] In S
v Snyman [77] it was expressly held that, provided the accused was warned prior to testifying at the bail hearing, [78] he
has no entitlement to be protected against the prejudicial effect of evidence voluntarily given by him at the bail hearing.
Similarly, in S v Sejaphale [79] such evidence was held to be inadmissible where the right against self-incrimination was not
explained to the accused—even where the accused was represented. [80] In the interesting case of S v Balkwell [81] the
appellant had deposed to an affidavit drafted by senior counsel for purposes of his bail application. It was common cause at
the trial that the appellant had not been warned during the bail hearing that the contents of his affidavit could be used
against him at trial. This omission notwithstanding, the affidavit was tendered by the state, and received by the court,
during the trial. The situation was however distinguishable from that in S v Sejaphale in that the affidavit was received at
trial, not in terms of s 60(11B)(c) of the Act, but as a statement of admissions voluntarily made in terms of s 220 of the
Act.
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The proviso in Snyman bears a strong similarity to the judgment in United States v Dohm, [82] where the accused's
statements made during his bail hearing were ruled inadmissible at trial as 'the magistrate failed to accurately advise him of
his Miranda [83] rights'. It is noteworthy that the Act does not expressly provide for the exclusion from the trial of evidence
given by the accused during his bail hearing, nor did the Act (until its amendment in 1998) provide for the admission of
such evidence at the trial. The question therefore arose, in the pre-Constitution era, whether the accused's evidence given
during the bail hearing may be admissible at his trial in terms of s 235(1) of the Act, which stipulates that the record of
judicial proceedings is admissible in criminal proceedings by the mere submission thereof.
In S v Sithebe [84] it was held as follows:
The appellant's evidence at his bail application w as proved at his subsequent trial by means of s 235 of the Criminal Procedure Act of
1977. Should it have appeared on the evidence in the trial that his earlier evidence had been induced by threats or compulsion it
w ould have affected the w eight and cogency of such evidence. (Compare S v Cele 1985 (4) SA 767 (A); S v Shabalala 1986 (4) SA 734
(A) at 745E, 746F-H.) The appellant did suggest, during the trial w ithin the trial, that he w as intimidated at the time by the mere
presence in court of police officers and that this w as the reason w hy he simply agreed w ith propositions put to him by counsel for the
State. That explanation w as not, how ever, repeated during the trial proper and apart from being inherently unlikely, w as rightly
disregarded by the Court a quo w hen the appellant's guilt w as under consideration. [85]
...
Finally, there are the admissions he made during his bail application. The appellant elected not to give evidence w hen the issue of
his guilt w as tried. The consequence is that the confession, the pointing out, and the admissions he made during the bail application
remained uncontroverted by any evidence from the appellant. In the result the Court a quo w as bound to convict the appellant. The
appeal against his conviction must accordingly fail. [86]
In S v Venter [87] it was also held that the evidence given by the accused in his bail hearing was admissible at his
subsequent trial. In rejecting the submission that such evidence was inadmissible, the court remarked as follows:
Before us, it w as submitted on behalf of the appellant that the evidence w as w rongly admitted. I disagree. I am not sure that the
privilege against self-incrimination applied to the situation at all. But even if it did, the evidence w as correctly admitted. The appellant
had in his evidence-in-chief given his version of w hat happened in the bathroom. The State w as entitled to test it by cross-
examination. Before us, a further argument w as raised, viz that the appellant had been improperly compelled by the State to bring
the application for bail. But in the Court a quo there w as no evidence in support of this. S v Botha & Others 1995 (2) SACR 605 (W ) is
distinguishable. The facts of our matter are different.
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In S v Nomzaza [88] (in which it was stressed [89] that the judgment was given without considering the provisions of the
interim Constitution as the trial had been commenced and completed before the interim Constitution took effect) the
following was said:
As far as the legal position before the operation of the [interim] Constitution is concerned, I accept that there may be instances
w here the accused w ould not have a fair trial if the record of the bail hearing w ere to be admitted against him at his subsequent trial.
Each case must be judged on its ow n facts. In the present matter the respondents exercised a free election to testify in the bail
application, and freely declared that they w ere pleading guilty to the first charge. Their cross-examination w as purely aimed at
ascertaining w hether the plea of guilty applied to both or only to one of the charges. The facts of the case therefore offer no reason
(and no other good grounds w ere submitted before us) to depart from the judgments of this Court in S v Sithebe and S v Venter, both
supra. The first question of law must thus be answ ered as follow s: the evidence of an accused in a bail application may, provided it is
otherw ise admissible, be admitted against him at his subsequent trial in terms of s 235 of the Act. [90] (My translation)
It will thus be seen from the aforegoing judgments that (absent constitutional considerations) an accused person who
wishes to apply for bail pending his trial is called upon to exercise an election: should he wish to pursue his right to liberty
and pre-trial bail, he would—save in exceptional circumstances—be required to give viva voce evidence and thus run the risk
of self-incrimination. His evidence in pursuit of his right to liberty is therefore given at his peril. Should he, on the other
hand, take the long view and decide to preserve his right to silence and his privilege against self-incrimination, his prospects
of pre-trial bail would plummet. Thus, in S v Tshabalala [91] (which was decided under the interim Constitution) Comrie J, on
behalf of the full court, said the following:
The only practical and convincing w ay in w hich the appellant could counter the aforegoing [evidence] w as by tendering viva voce
evidence and submitting herself to cross-examination. Such a tender, had it been made, w ould surely have been acceded to by the
magistrate. Mr Veldhuizen pointed to a risk of self-incrimination, if the appellant had elected to give viva voce evidence. S v Nomzaza
1996 (2) SACR 14 (A). There is no particular reason to think that the appellant w ould have incriminated herself. According to her
founding affidavit, the Appellant denies having been involved in the murder of her late husband, intends to plead not guilty,
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and is confident of an acquittal. Such risk of self-incrimination as may have existed, was a risk which she should have run in the
circumstances. (Emphasis added.)
In Stephen WLD case no A1237/93 (unreported) [92] it was held that, if the accused does not testify, or refuses to answer
questions
. . . he fails to that extent to debilitate such strength as the prosecution may have. The consequence may be that he is refused bail
for the time-being, at least until he is in a position to w aive his privilege and to give to the crucial question, an answ er w hich he is
confident of being able to defend against cross-examination.
It is important to bear in mind that it is not only blatantly incriminating answers that may adversely affect the accused at his
trial: it is those seemingly innocuous questions and answers which may ultimately provide a potent link between the accused
and the alleged crime that may prove fatal to his case on the merits. [93] The obvious way out of this impasse would have
been for the legislature to decree that the accused's evidence given at his bail hearing should not be admissible at his
subsequent trial. In the absence of such legislative decree, however, Myburgh J in S v Botha [94] adhered to the following
course in a case decided under the interim Constitution:
The w ay to avoid burdening the accused w ith that choice is to follow the procedure adopted w ith the evidence of an accused given at
a trial w ithin a trial. W hen an accused places in issue the voluntariness of the confession made by him, the issue of voluntariness is
kept distinct from the issue of guilt.
'This is achieved by insulating the enquiry into voluntariness in a compartment separate from the main trial. . . . At such trial, the
accused can go into the w itness box on the issue of voluntariness w ithout being exposed to general cross-examination on the
issue of his guilt. (See R v Dunga 1934 AD 223 at 226.) The prosecution may not, as part of its case on the main issue, lead
evidence regarding the testimony given by the Defendant at the trial w ithin the trial.' Per Nicholas AJA in S v De Vries 1989 (1) SA
228 (A) at 233H-234A. . . .
Similarly, in S v Sithebe 1992 (1) SACR 347 (A) at 341a-c, Nienaber JA said:
'The principle w hich [S v De Vries] exemplifies is that an accused must be at liberty to challenge the admissibility of an
incriminating document at a trial-w ithin-the-trial w ithout fear of inhibiting his election at the end of the day—irrespective of
w hether the document is admitted or not—of not testifying on the issue of his alleged guilt. Unless the trial-w ithin-the-trial is
treated as a w atertight compartment, w ith no spill-over into the main trial, that danger w ill alw ays exist: for if an accused
person's evidence in the trial-w ithin-the-trial can legitimately be held against him in the main trial, he might be obliged to testify
again in order to regain lost ground; and if the evidence of a state w itness, w here the merits are at stake, can simply be
transplanted into the main trial, the accused might be obliged not only to cross-examine fully on all such issues (lest he lose the
opportunity of doing so later) but to testify himself in order to neutralise its effect.'
Accordingly, I have come to the conclusion that accused 1 w ould not have a fair trial if the record of the bail application w ere to be
admitted in evidence.
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In S v Aimes [95] a novel situation arose: in the first place, the accused gave evidence at the bail hearing which was held
under the interim Constitution, whereas the trial took place under the final Constitution; and secondly, the facts of the
matter were such that the admission at the trial of the one accused's evidence given at the bail hearing would have rendered
his trial unfair, while at the same time its exclusion would deprive the other accused of evidence which he required in order
to have a fair trial in the fullest sense. Desai J approached this unusual problem as follows:
In a recent line of decisions on the interim Constitution our Courts have taken the view that the admissibility of evidence obtained in
violation of a fundamental right of an accused person must be adjudged not w ith reference to inflexible norms but must be left to the
discretion of the trial Court. . . . Farlam J in Motloutsi's case applied the guidelines expressed in the majority judgment in the Irish case
of The People (Attorney-General) v O'Brien [1965] IR 142. . . . The more appropriate guideline w ould be that the discretion be exercised
in favour of excluding the evidence if the admission thereof w ould render the trial unfair or otherw ise be detrimental to the
administration of justice. This in fact coincides w ith the basis for the exercise of the Court's discretion as to the admission of evidence
obtained in violation of an accused person's constitutional rights as specified by s 35(3) of the new Constitution.
Applying this to the issue to hand in this matter it is clear that the admission of the bail testimony w ould render the trial unfair as
far as it concerns the position of accused No 1 unless a formula is found by the Court to prevent such prejudice. . . . It seems to this
Court that a formula, akin to that adopted by Van Niekerk J in S v Jeniker & Others (2) 1993 (2) SACR 464 (C) at 467-8, w ould achieve
the purpose of preventing such prejudice, namely that the bail evidence of accused No 1 may be introduced as evidence for the
specific purpose of assisting accused No 2 in his defence, subject to the rider that it is not admissible as evidence against accused No
1 and that it may be used for the purpose of cross-examining accused No 1 or for such other purpose as counsel for accused No 2
may deem fit insofar as this does not seek to introduce the transcript as being a statement of the truth of its contents to be used
against accused No 1. Such a formulation w ould also give expression to accused No 2's aforementioned constitutional right to a fair
trial and in particular his right to adduce evidence, w hich the exclusion of the bail evidence of accused No 1 w ould otherw ise
prejudice. This purpose w ould not how ever be achieved and w ould be thw arted w ere the bail application to be treated as being
w ithin a w atertight compartment w ith no spill-over into the trial. [96]
Regrettably, these sentiments notwithstanding, the legislature has seen fit to ignore the suggestion relating to 'watertight
compartments' implicit in the judgment in S v Botha. In s 60(11B)(c) of the Act [97] it enacted the following provision:
The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused
follow ing upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court
must inform him
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or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes
admissible in any subsequent proceedings.
In choosing not to follow the judgment in S v Botha's case, Vahed AJ in S v Dlamini and Another [98] made the following
observation:
It w ould bring the administration of justice into disrepute if, for example, an accused person for some reason admits the commission
of a certain offence at his bail application but nevertheless is in a fortunate position to be admitted to bail, but is allow ed thereafter
to be immune from that administration and deny the commission of the offence at his later trial and for some or other reason achieve
an acquittal. It must be remembered that both proceedings are open ones at w hich the public are entitled to be present and, if such
an occurrence had to take place as in the last given example, the public w ould indeed be entitled to say that the law is an ass. If,
how ever, I am w rong in that conclusion, it appears to me that, if the law makers intended isolating the bail application proceedings
. . . they w ould have said so specifically in the legislation constituting either our Bill of Rights or some other Act of Parliament. [99]
Lategan J in S v Chavulla and Others [100] also declined to follow the dictum in S v Botha's case, and reasoned as follows:
The rights referred to here, primarily those acquired constitutionally by any person during trial, apart from the right to a fair trial, are
namely first the right to silence and secondly the right to refuse to incriminate himself. Clearly it must therefore be determined, on the
basis of the facts before the court, w hen it has to be decided w hether an aspect w as fair tow ards an accused, a process must be
[sic] commenced in w hich (and I say this w ithout fear of contradiction) it must be judged in an even-handed manner tow ards the tw o
parties w hose interests are at stake in such a decision [sic]. Put differently, the determination of w hether something is fair in such a
case cannot be done solely w ithin the frame of reference of one party's interests: reference must be made simultaneously and even-
handedly to the interests of both parties involved. A criminal trial is by its nature a process in w hich tw o parties are involved, on the
one hand the interests of the accused and on the other the interests of the State, the community represented by the State. [101] (My
translation)
With respect, the judgment in S v Chavulla leaves one with a sense of disquiet: so vigorous is the court's reasoning in
favour of the state that one may be
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forgiven for thinking that it is the state's interests that are constitutionally protected. It appears that this impression was
shared by Davis J in S v Cloete 1999 (2) SACR 137 (C): [102]
An examination of the different approaches adopted respectively by Myburgh J in S v Botha's case and Lategan J in Chavulla's case
depends upon the precise basis of the finding in Botha's case. I found it rather difficult from a reading of Myburgh J's judgment in
Botha's case to decide w hether the learned Judge had found that evidence from a bail application must per se be excluded as being in
breach of an accused's rights in terms of s 35(1) of the Constitution, namely the right to remain silent and the right not to be
compelled to make any confession or admission that could be used in evidence against that accused and further, the right in respect
of s 35(3)(h) of the Constitution, namely the right to be presumed innocent, to remain silent and not to testify during proceedings and
not to be compelled to give self-incriminating evidence. It appears to me as if the finding w as that no evidence is inevitably excluded
but rather evidence given in ignorance of certain rights is to be excluded. By contrast Lategan J adopts a more robust attitude to the
importance of these rights w hich for him appear to count far less than the interests of the community.
The Constitutional Court in S v Dlamini, [103] while recognising that the facts in Botha and Dlamini differed, nevertheless
went on to say the following:
[93] In any event, I disagree w ith the reasoning and conclusion in Botha that the record of bail proceedings should be kept distinct
from the evidence as to guilt, on the analogy of evidence in a trial-w ithin-a-trial as to the voluntariness of a confession. It is true that
evidence given at a bail hearing may ultimately redound to the prejudice of the accused. It can therefore not be denied that there is a
certain tension betw een the right of an arrested accused to make out an effective case for bail by adducing all the requisite
supporting evidence, and the battery of rights under s 35(1) and (3) of the Constitution. But that kind of tension is by no means
unique to applicants for bail. Nor does its mere existence sound constitutional alarm bells. Choices often have to be faced by people
living in open and democratic societies. Indeed, the right to make one's ow n choices is an indispensable quality of freedom. And often
such choices are hard.
[94] Litigation in general, and defending a criminal charge in particular, can present a minefield of hard choices. That is an inevitable
consequence of the high degree of autonomy afforded the prosecution and the defence in our largely adversary system of criminal
justice. An accused, ideally assisted by competent counsel, conducts the defence substantially independently and has to take many
key decisions w hether to speak or to keep silent: Does one volunteer a statement to the police or respond to police questions? If one
applies for bail, does one adduce oral and/or w ritten evidence and if so by w hom? Does one for the purposes of obtaining bail
disclose the defence (if any) and in w hat terms? Later, at the trial, does one disclose the basis of the defence under s 115 of the
CPA? Does one adduce evidence, one's ow n or that of others? Each and every one of those choices can have decisive consequences
and therefore poses difficult decisions. As w as pointed out in Osman's case [Osman v The Attorney-General, Transvaal 1988 (4) SA
1224 (CC); 1998 (11) BCLR 1362 (CC)] '[t]he choice remains that of the accused. The important point is that the choice cannot be
forced upon him or her.' It goes w ithout saying that an election cannot be a choice unless it is made w ith proper appreciation of w hat
it entails. It is particularly important in this country to remember that an
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uninformed choice is indeed no choice. The responsibility resting upon judicial officers to ensure the requisite know ledge on the part
of the unrepresented accused need hardly be repeated.
It is difficult to express unqualified support for the reasoning in the aforequoted passage. While no one will deny that
tactical decisions and choices have to be made constantly during the course of a trial (and frequently also at the pre-trial
stage), the dismissal of the intricate problem under discussion on the basis of 'life is full of difficult choices' is, with respect,
somewhat glib and unconvincing. What the Constitutional Court glosses over in its treatment of the topic is the fact that, in
this particular instance, the accused is expected to make not a mere tactical election, but a choice between two extremely
important fundamental rights guaranteed by the Constitution, namely the right to liberty on the one hand and the right to a
fair trial (incorporating the right against self-incrimination and to remain silent) on the other. This approach by the
Constitutional Court is not helped by the uncompromising and somewhat cynical remarks which are to be found later in the
judgment:
[95] In effect the reasoning in S v Botha w ishes to give the accused the best of both alternatives or, as it w as put bluntly in S v
Dlamini, the right to lie: one can advance any version of the facts w ithout any risk of a come-back at the trial; and there one can
choose another version w ith impunity. How ever, the protection of an arrestee provided under the right to remain silent in the
Constitution—or the right not to be compelled to confess or make admissions—offers no blanket protection against having to make a
choice. It is true, the principal objective of the Bill of Rights is to protect the individual against abuse of state pow er; and it does so,
among others, by shielding the individual faced w ith a criminal charge against having to help prove that charge. That shield against
compulsion does not mean, how ever, that an applicant for bail can choose to speak but not to be quoted. As a matter of policy the
prosecution must prove its case w ithout the accused being compelled to furnish supporting evidence. But if the accused, acting freely
and in the exercise of an informed choice, elects to testify in support of a bail application, the right is in no w ay impaired. Nor is it
impaired, retrospectively as it w ere, if the testimony voluntarily given is subsequently held against the accused.
Alarmingly, the Constitutional Court ignores (or silently condones) the common practice whereby the state, in bail hearings,
calls no witnesses save for the investigating officer, who proceeds to claim the existence of devastating evidence
incriminating the accused. Once bail has been denied, such evidence seldom surfaces at the trial—yet the accused has no
recourse, as the investigating officer seldom testifies on the merits at the trial and, in any event, exposure at the trial stage
of the practice would be of little relevance and to no avail.
To be preferred is the judgment of Davis J in S v Cloete, [104] where the learned judge clearly came to grips with the
tension between the due process and crime control models of criminal justice, and concluded that a balance should be
sought and struck:
This is a difficult case and I w ould have preferred far more time than 18 hours to canvass this issue. It is particularly problematic
because the burden of the crime w ave and the need for
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crime control w eighs very heavily. It is w rong to conclude that an attempt to preserve the Constitution is necessarily a nod in the
direction of criminals. The Constitution is not the cause of crime in this country. The court's task is to uphold the Constitution in such a
manner that gives it its proper effect w hich I consider is to attempt to achieve some balance betw een the models of crime control and
due process.
It is submitted that the saving grace in the circumstances is to be found in the fact that the Constitutional Court in S v
Dlamini [105] adopted and applied its earlier judgment in Key v Attorney-General, Cape of Good Hope Provincial
Division: [106]
W hat the Constitution demands is that the accused be given a fair trial. Ultimately, as w as held in Ferreira v Levin, fairness is an issue
w hich has to be decided upon the facts of each case, and the trial Judge is the person best placed to take that decision. At times
fairness might require that evidence unconstitutionally obtained be excluded. But there w ill also be times w hen fairness w ill require
that evidence, albeit obtained unconstitutionally, nevertheless be admitted.
If the evidence to w hich the appellant objects is tendered in criminal proceedings against him, he w ill be entitled at that stage to
raise objections to its admissibility. It w ill then be for the trial Judge to decide w hether the circumstances are such that fairness
requires the evidence to be excluded. [107]
As regards the issue of trial fairness, both Lategan J in S v Chavulla and Others [108] and Davis J in S v Cloete [109] alluded
to the need to ensure fairness to both state and accused. This was reiterated by the Constitutional Court in S v
Basson, [110] where unusual circumstances arose in that the judgment is the subject of an appeal by the state against inter
alia the trial court's decision to consider the admissibility of the bail record even before the trial had commenced, and the
exercise of its discretion to exclude the record of the bail hearing at trial on the basis that the accused had been unfairly
cross-examined by counsel for the state in order to achieve an ulterior purpose, namely to prepare a foundation for cross-
examination at the trial; and that the state had unfairly withheld documents from the accused. This is what was held by the
court on appeal:
The admissibility of the bail record
[104] W e have already found that the issues concerning the admissibility of the bail record do raise constitutional matters. There are
tw o issues raised by the State in relation to the bail record. The first relates to the fact that the High Court considered the
admissibility of the bail record before the trial had in fact commenced and before the State had made any application to admit the
record. The second relates to the High Court's conclusion that the admission of the bail record w ould render the trial unfair.
[105] In response to the first issue, the timing of the consideration of the admission of the bail record, the SCA held that the fact that
this happened prior to the beginning of the trial rather
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than thereafter could not have had an effect on the outcome of the case. W e agree w ith the SCA in this regard, in particular, because
no matter how the judgment w as formulated by the High Court, it is clear that a decision to exclude evidence is an interlocutory
decision w hich can be revisited at any stage during the trial. As w e find below , it w as open to the State to re-apply for the admission
of the bail record, or parts of it, at relevant times during the trial. In our view , therefore, the timing of the hearing of the application to
exclude the bail record is not a matter upon w hich the State can succeed on appeal. W e turn now to consider the second question—
the decision by the trial Judge to exclude the record of the bail proceedings.
[106] In our preliminary judgment in this matter, w e held that in deciding w hether to admit a bail record a judge exercises a discretion
w hich must be exercised in the light of w hat is fair in the circumstances. The first question w e must then consider is the proper
approach of an appeal Court to the exercise of such a discretion by the High Court. Once that question is determined, this Court w ill
have to consider w hether on the approach identified the State's appeal on this leg has prospects of success. Before turning to the
question of the approach on appeal to the exercise of a discretion by the High Court, it might be helpful to set out briefly the law on
the admissibility of bail records as it applied in this case.
(a) The law as to the admissibility of bail records in criminal proceedings
[107] Section 60(11B)(c) of the Criminal Procedure Act provides as follow s:
'The record of the bail proceedings . . . shall form part of the record of the trial of the accused follow ing upon such bail
proceedings: provided that if the accused elects to testify during the course of the bail proceedings the Court must inform him or
her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes
admissible in any subsequent proceedings.'
This provision w as not in force at the time of the bail proceedings against the accused but had come into force at the time of the trial.
In S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat, this Court held that this provision should not be interpreted to
deprive a trial court of its discretion to exclude admissible evidence that w ould otherw ise render the trial unfair. Kriegler J reasoned
as follow s:
'Provided trial courts remain alert to their duty to exclude evidence that w ould impair the fairness of the proceedings before
them, there can be no risk that evidence unfairly elicited at bail hearings could be used to undermine accused persons' rights to
be tried fairly. It follow s that there is no inevitable conflict betw een s 60(11B)(c) of the CPA and any provision of the
Constitution. Subsection (11B)(c) must, of course, be used subject to the accused's right to a fair trial and the corresponding
obligation on the judicial officer presiding at the trial to exclude evidence, the admission of w hich w ould render the trial unfair.'
[108] The High Court relied upon this reasoning w hen it concluded that the admission of the bail record as evidence in the criminal
trial w ould result in an unfair trial. In reaching this conclusion, the Judge relied on a range of considerations particularly the fact that
the prosecutor had acted unfairly in the bail proceedings by preventing the accused from having access to documents in the State's
possession; and the fact that much of the questioning of the accused in the bail hearing w as undertaken only for the purpose of
laying a foundation for cross-examination in the subsequent trial.
(b) The approach of an appeal Court to the exclusion of a bail record
[109] This Court has held that it is the trial Court that is best placed to determine w hat w ill constitute a fair trial or not. Quite clearly,
in this case, the trial Judge decided that the admission of the bail record w ould render the proceedings unfair and accordingly
exercised
Page 134
his discretion to exclude the record. The question that arises is w hat approach an appeal Court should take to the exercise of such a
discretion.
[110] On ordinary principles, the question of the approach of an appellate Court to the exercise of discretion by another court
depends upon the nature of the discretion concerned. W here the discretion is a 'strong' discretion or 'true' discretion in the sense
that there is a range of options available to the Court exercising the discretion, an appellate Court w ill only interfere w ith the exercise
of that discretion w here it is show n that
'. . . the low er court had not exercised its discretion judicially, or that it had been influenced by w rong principles or a misdirection
on the facts, or that it had reached a decision w hich in the result could not reasonably have been made by a court properly
directing itself to all the relevant facts and principles.'
This Court has held that an appellate Court w ould only interfere w ith the exercise of a discretion by a low er court, w ith regard to the
refusal of a postponement and the refusal of an application for condonation if such discretion had not been exercised judicially or if it
w ere to have been influenced by w rong principles or a misdirection on the facts.
[111] In addition, how ever, it should be noted that there are other considerations relevant to determining the approach of an
appellate Court to the exercise of a discretion w hich is not a discretion in the strict sense. In Media Workers Association, for example,
Grosskopf JA noted that:
'In passing I should state, lest I be misunderstood, that even w here a decision is not discretionary in the narrow sense
considered above, there may be features in the nature of the decision or the composition of the tribunal a quo w hich might call
for restraint by a Court of appeal in the exercise of its pow ers. Such restraint w ould then, how ever, be exercised for policy
reasons, and w ould not, as w ith discretionary decisions, flow necessarily from the nature of the decision appealed against.'
Even if a discretion is not a discretion in the strict sense, there may be circumstances in w hich a court w ill nevertheless adopt an
approach on appeal w hich w ill overturn the low er court's decision only if it has not been judicially made, or based on incorrect
principles of law or a misappreciation of the facts. It is necessary to consider now the nature of the discretion at issue in relation to
the exclusion of the bail record by the trial Court.
[112] Under our constitutional order, a trial court may exclude otherw ise admissible evidence on the basis that it may render the trial
unfair in order to protect the right to a fair trial. There can be no doubt that it is the duty of the trial Court to ensure that the trial is
fair in substance and the trial Court is obliged to give content to this notion. In considering the approach to the exercise of discretion
to exclude otherw ise admissible evidence in order to ensure a fair trial upon appeal, it should be borne in mind that trial judges must
be given freedom to exercise this discretion fairly on their understanding of the case before them. Courts must be slow to adopt rules
w hich w ould straight-jacket a trial judge in the exercise of that discretion.
[113] W hen a trial court assesses the question w hether the admission of evidence w ould render the trial unfair, it has to consider a
range of factors: the nature of the evidence in question, and how much of it is of advantage to the parties; the need to be fair not
only to the accused but also to the prosecution, in the interests of the broader community; the need to ensure that a trial can run
efficiently and reasonably quickly; and the reasons underlying the fact that the admission of the evidence may render the trial unfair.
These are complex factors w hich may w ell pull in different directions. If the evidence is w rongly admitted and the trial is rendered
unfair, the accused w ill clearly have a right to raise that on appeal and the question for an appeal Court w ill be w hether the trial w as
unfair. The more difficult question arises, as in this case, w here the evidence is excluded on the basis that its admission may render
the trial
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unfair. An assessment of w hether the evidence w ould have rendered the trial unfair is inevitably hypothetical and difficult to assess in
the relatively rarefied atmosphere of an appellate Court. It is indeed a matter w hich the trial Court is best placed to judge.
[114] In these circumstances, it seems clear that this is an appropriate case in w hich an appellate Court should be slow to interfere
w ith the decision of the trial Court. The trial Court identified the follow ing considerations as relevant to the decision of w hether to
admit the bail record: w hether the accused w as properly w arned in terms of s 60(11B)(c), w hich the Court noted w as not applicable in
this case as that provision had not come into force at the time of the bail hearing; w hether the prosecutor had acted fairly in cross-
examining the accused during the bail hearing the duty on the prosecutor to ensure that an accused is not unnecessarily deprived of
documents in the State's possession w here w ithholding the documents w ould prejudice the accused unduly; and w hether in the
extraordinary factual circumstances of the case (in w hich the accused had previously been examined at length by the OSEO, the
length of time since the events had occurred and the failure to permit the accused an opportunity during the bail hearing to consult
documents in the prosecution docket) the State's conduct w as fair tow ards the accused.
[115] The Court concluded that it w as unfair of the prosecutor to w ithhold documents from the accused during the bail hearing and
that it w ould not have been prejudicial to the State for those documents to have been provided to the accused at the bail hearing. It
also concluded that the extensive cross-examination by the prosecutor in circumstances w here the accused had conceded that the
State had a prima facie case against him w as solely for the purposes of creating a platform for cross-examination during the trial and
that that w as unfair to the accused.
[116] In deciding to exclude the record, the Court did take into account that the bail record can be a useful tool for the State and that
it should not lightly be deprived of such a tool. The Court concluded, how ever, that the cumulative effect of the State's conduct during
the bail hearing w as such that it w ould be unfair to the accused to admit the bail record and that it should therefore be excluded. The
State also argued in the High Court that those portions of the record w hich w ere tainted should be excised and the remainder of the
record admitted. In response to this, the trial Court held that such an exercise w ould be time-consuming and impractical.
[117] In this Court, the State argued that the decision of the High Court to exclude the bail record in its entirety w as w rong. This
Court has held that the test on appeal is not w hether the trial Court w as correct in the exercise of its discretion to exclude evidence
on the grounds that it may render the trial unfair. The question is w hether, as this Court formulated it in National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others, the low er Court has not exercised its discretion judicially, or been
influenced by w rong principles of law or a misdirection on the facts, or reached a decision w hich could not reasonably have been
made by a court properly directing itself to all the relevant facts and legal principles.
[118] In considering the reasons given by the High Court for its decision to exclude the bail record, w e cannot say that that discretion
w as not judicially exercised. It may be that another court w ould have come to a different conclusion, or decided that the issue of the
bail record should be decided at a later stage in the trial. How ever, the State has not pointed to a misdirection on the facts, or the
mistaken application of legal principles w hich w ould render it appropriate for this Court to interfere w ith the High Court's decision on
the matter.
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In summary, therefore, the record of the accused's evidence at the bail hearing may be received by the trial court provided
that such evidence is otherwise admissible; that the accused was aware of his right against self-incrimination at the time of
his testimony at the bail hearing; and that the admission of such evidence at the trial will not render his trial unfair.
What would be the effect, however, of the well-nigh automatic reception of the bail record at trial if the trial judge had
previously presided over the accused's bail appeal—and accordingly had become privy to facts which, although relevant and
admissible in the bail application, were prejudicial and inadmissible at the subsequent trial? (There are numerous such
possibilities of trial prejudice that may necessitate the recusal of the presiding officer at trial, as was pointed out in S v
Bruinders.) [111] This aspect came up for consideration in Majikazana, [112] where, however, no application had been made
for the trial judge's recusal. After conviction and sentencing of the accused, the trial judge granted the application for a
special entry and indicated that he would have arranged for a colleague to hear the trial if he had been aware of the
perceived irregularity. The Supreme Court of Appeal held that, as no application had been made for the trial judge's recusal,
in the circumstances actual bias would have had to be shown in order for the special entry of irregularity in the proceedings
to succeed:
[11] W hat is of importance in this matter is that no application w as made for the trial judge's recusal. Counsel for the appellant
submitted that during the trial neither the appellant, nor his counsel, it seemed, w as aw are of the fact that the trial judge had also
heard the bail appeal, as the appellant w as not represented by the same firm of attorneys in the regional court and in the High Court.
Section 60(11B)(c) of the Act prescribes that the record of the bail proceedings, excluding information relating to the accused's
previous convictions or charges pending against him or her or w hether he or she has been released on bail in respect of those
charges, shall form part of the record of the trial of the accused follow ing upon such bail proceedings. It is therefore highly probable,
in my view , that the appellant's legal representative at the trial w ould have had sight of the record of the bail proceedings before the
regional magistrate and on appeal at some stage during the trial or even before its commencement. It must therefore be inferred that
the appellant's legal representative w as aw are that Froneman J had heard the appellant's bail appeal, but that he took a conscious
decision against asking for the judge's recusal in accordance w ith his instructions and the appellant's defence.
It must be respectfully pointed out that, while the finding must be supported on the facts found by them to have existed,
the learned Judges of Appeal were wrong in assuming (contrary to counsel's assurance) that sight of the bail record by
counsel prior to the trial would have alerted him to the fact that a bail appeal had taken place, and that it had moreover
been heard by the judge presiding over the trial. It is, with respect, not the bail appeal record which is placed before the trial
court and made available to counsel in terms of s 60(11B)(c) of the Act, but the record of the 'bail proceedings' conducted
in the lower court, which is also the court from which, administratively, the record itself emanates. One can only speculate
whether, had the Supreme Court of Appeal not made
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the aforesaid erroneous assumption, it might have held that the trial had been rendered unfair after all by the trial judge's
hearing of it.
8.14 The rules of trial

A bail application does not fall under 'criminal proceedings' as defined in the Act. However, such applications are indeed
'judicial proceedings' [113] rather than, for instance, inquiries, administrative proceedings, or quasi-judicial proceedings.
Although a certain informality is observed in bail hearings—it is not unheard of, for instance, for the record of a bail hearing
to consist of an amalgam of statements from the bar, viva voce evidence, affidavits and submissions, not always made in
strictly the correct order—the evidential rules of trial are therefore nevertheless followed.
[1] C h 5.
[2] C h 7.
[3] See, for example, S v Pienaar 1992 (1) SAC R 178 (W); S v De Kock 1995 (1) SAC R 299 (T).
[4] 1999 (1) SAC R 49 (SE).
[5] Such appeals are treated on the same footing as appeals against conviction.
[6] See s 77(6) of the Act.
[7] 1999 (2) SAC R 51 (C C ), 1999 (4) SA 623 (C C ) para [11].
[8] C h 5.
[11] Section 73(2) of the Act.
[12] See para 7.21.
[14] See, for example, Prokureur-Generaal van die WPA v Van Heerden 1994 (2) SAC R 469 (W); S v Maki and Others 1994 (2) SAC R 630 (E); and
see the obiter dictum of Leveson J in S v Mbele and Another 1996 (1) SAC R 212 (W) 220h-i. C f the tenor of Prokureur-Generaal, Vrystaat v Ramokhosi
1997 (1) SAC R 127 (O).
[15] In S v Nomzaza 1996 (2) SAC R 14 (A) 16f it was said that '[d]aar kan geen twyfel wees dat 'n borgaansoek geregtelike verrigtinge is nie'.
[16] A designation mooted by Schmidt Bewysreg (1989).
[17] See Act 45 of 1988, s 3.
[18] C f Ferreira Strafproses in die Laer Howe (1979) 449.
[19] See, for example, R v Kok 1927 NPD 267; S v Maharaj and Another 1976 (3) SA 205 (D); S v Tshabalala 1998 (2) SAC R 259 (C ).
[20] Act 45 of 1988.
[21] 1994 (2) SAC R 630 (E).
[22] 1995 (2) SAC R 583 (E), where Jennett J said the following: 'The effect of the new C onstitution is to make the application for release from
detention with or without bail a species of the interdictum de libero exhibendo and, as such, in my view, civil proceedings within the meaning, not only
of s 3 of Act 45 of 1988 . . . but also of s 20 of Supreme C ourt Act 59 of 1959.' (Emphasis added.)
[23] In S v Ramokhosi 1999 (1) SAC R 497 (A) the Supreme C ourt of Appeal held that it was not necessary for it to express a view as to the
correctness or otherwise of the approach in S v Maki and Others and Ndjadayi (above).
[24] Lafase & Israel Criminal Procedure 2 ed (1992) 599-600.
[25] By Schmidt Bewysreg (1989).
[27] 1994 (2) SAC R 630 (E) 635d-g: 'Die aard van die getuienis wat toelaatbaar geag word in borgaansoeke strook ook nie met die eerste oogopslag
met die tipering daarvan as Òf strafregtelike Òf siviele verrigtinge nie. Die reëls ten opsigte van die toelaatbaarheid van hoorsêgetuienis,
karaktergetuienis en die bewys van vorige veroordelings in borgaansoeke is nie altyd in ooreenstemming met die gewone reëls van die bewysreg nie.
(Vergelyk Van der Berg Bail, A Practitioner's Guide (op cit te 88-92).) Dit beteken egter nie noodwendig dat borgaansoeke nie geregtelike verrigtinge
is nie of dat die bevinding in 'n borgaansoek nie 'n geregtelike handeling is nie, maar eerder 'n administratiewe handeling. Uiteraard, geoordeel bloot
op formele maatstawwe, is die prosedure en bevinding in 'n borgaansoek geregtelik van aard omdat dit in 'n geregshof geskied. Maar volgens
materiële maatstawwe is dit ook geregtelik van aard, naamlik 'n beslissing ten aansien van 'n regsgeskil tussen partye oor 'n wesenlike reg (die
vryheid van 'n persoon), waaraan toepassing gegee word na die hof se bevinding. (Sien Wiechers Administratiefreg 2de uitg te 104-16.)' And see
Prokureur-Generaal van die WPA above 479e; S v Nomzaza (above) 16f.
[28] C f Twayie v Minister van Justisie 1986 (2) SA 101 (O); S v Maki and Others (above) 637h-i.
[29] At 637c-d.
[30] Act 45 of 1988. See also S v Ndjadayi 1995 (2) SAC R 583 (E).
[31] See, for example, Tshabalala (above).
[32] 1994 (2) SAC R 630 (E) 636a.
[33] C f S v Bennett 1976 (3) SA 652 (C ).
[34] C f S v Fourie 1973 (1) SA 100 (D).
[35] 1973 (1) SA 841 (C ) 847A-C : 'Wat borg aanbetref vind ons al hoe meer dat aanklaers en selfs landdroste hulle self bloot as stempels laat
gebruik vir die siening van die polisie ten opsigte van of borg toegestaan behoort te word of nie, asook met betrekking tot die bedrag van borg. Die
gevare van so uitgangspunt is voor die hand liggend. 'n Strenge onafhanklike beoordeling van die feite van elke saak wat sou insluit 'n versigtige
oorweging van die omstandighede van elke beskuldigde, die erns van die misdaad en die belange van die gemeenskap behoort deur die voorsittende
beampte in elke geval gedoen [te] word. Die houding van die ondersoekbeampte is klaarblyklik 'n tersaaklike oorweging maar nie die enigste nie en
nie eens die belangrikste oorweging wat by 'n Hof behoort te geld met betrekking tot of 'n beskuldigde op borg vrygelaat behoort te word en wat die
bedrag van die borg moet wees nie.'
[36] Hafferjee 1932 NPD 518; Maserow v Attorney-General 1941 WLD 43; S v Maharaj and Another 1976 (3) SA 205 (D).
[37] S v Hlongwa 1979 (4) SA 112 (D), where the opinion was based on hearsay. This will often be the case in practice, for the investigating officer
will often form his opinion as the result of rumour or information furnished by a faceless informer—as happened in S v Tshabalala 1998 (2) SAC R 259
(C ). See also s 60(4) of the Act and paras 7.20, 9.2, 9.4, 9.6.
[38] C PD case no A280/2004, 26 March 2004 (unreported).
[39] (A468/11) [2011] ZAGPJHC 185 (7 December 2011).
[40] R v Noor Mohamed [1949] AC 182 (PC ); R v S 1954 (3) SA 522 (A); S v Sithole 1980 (4) SA 148 (D).
[41] S v Patel 1970 (3) SA 565 (W); S v Fourie (above).
[42] But see para 8.8.
[43] Paras 9.2-9.5.
[44] Swart 1923 NPD 133; Potgieter 1955 (1) PH H31 (O); S v Berg 1962 (4) SA 111 (O).
[45] S v Patel above. C f S v Maharaj and Another 1976 (3) SA 205 (D).
[46] My emphasis.
[47] C f the italicised excerpt from s 211 of the Act. S v Hlongwa (above).
[48] By Act 85 of 1997.
[49] It may be thought that the creation of an offence in s 60(11B)(d) is something of an overkill. Although the wording of s 60(11B)(a)(i) at first
blush appears to suggest that the accused needs to provide no further information than the fact that he has previously been convicted of an offence,
there can be little doubt that the section ought to be interpreted in such a manner that the accused is actually compelled to inform the court of the
details of his previous convictions. Once that interpretation is accepted, it follows that an accused person may be criminally punished for the omission
of particulars (or furnishing inaccurate particulars) in respect of convictions that may not only have been technical or complex, but which moreover
may go back a number of years or even decades.
In addition to being sentenced in terms of s 60(11B)(d) of the Act, the accused's bail may be cancelled in terms of s 68(1)(e) as inserted by Act 85 of
1997, if it appears that the accused 'has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings . . .'.
[50] C f S v Barber 1979 (4) SA 218 (D).
[51] Barber (above); S v De Abreu 1980 (4) SA 94 (W).
[52] See paras 8.7, 8.8.
[53] 2002 (1) SAC R 79 (C C ).
[54] At paras [73] and [74].
[55] While Wigmore on Evidence vol 3 para 824 espouses the view that the unreliability of involuntary statements was the only legitimate ground for
excluding them, and has been judicially supported by our highest court in, for example, S v Kearney 1964 (2) SA 495 (A) and S v Lebone 1965 (2) SA
837 (A), the potential unreliability of involuntary admissions and confessions is clearly not the sole criterion for their exclusion. See also S v Radebe
1968 (4) SA 410 (A) 418-19; R v Sparks [1964] 1 All ER 727 (C A).
[56] See, for example, S v Lwane 1966 (2) SA 433 (A) 444; Haynes v Washington 373 US 503 (1963).
[57] WC HC case no A239/08, 14 December 2010 (unreported).
[58] C f S v Nomzaza (above).
[59] AD case no 59/95, 28 March 1996 (unreported).
[60] This important aspect is more fully discussed in para 8.13 below.
[61] Above, 19c: 'In die veronderstelling dat die respondente die beskerming teen self-inkriminasie geniet het, meen ek dat hulle daarvan afstand
gedoen het toe hulle in hul hoofgetuienis doelbewus, ten einde borg te kry, verklaar het dat hulle skuldig pleit. Hulle was, soos reeds genoem,
regsverteenwoordig en alle aanduidings is dat hulle bewus was van die bewyslas en die algemene privilegie teen self-inkriminasie.' (Emphasis added.)
[62] Blunt v Park Lane Hotel Ltd [1942] 2 All ER 187 (C A) 189B; Heydon Cross on Evidence 7 ed (2004) 421.
[63] C f S v Botha 1995 (2) SAC R 605 (W).
[64] Magmoed v Janse van Rensburg 1993 (1) SA 777 (A) 820H-821C . See also S v Mushimba 1977 (2) SA 829 (A) 844G.
[65] S v Lwane 1966 (2) SA 433 (A) 444F.
[66] S v Botha (above) 609g.
[67] At 440H-441A.
[68] At 19d. See also Stephen WLD case no. A1237/93 (unreported); S v Adams 1993 (1) SAC R 611 (C ).
[69] But compare S v Botha (above), where the accused's claim that—notwithstanding the fact that he had been represented at the bail hearing by
both attorney and counsel—he was unaware of his privilege against self-incrimination and his concomitant right to refuse to answer incriminating
questions, was upheld. See also S v Mqubasi 1993 (1) SAC R 198 (SE); S v Nyengane 1996 (2) SAC R 520 (E). And cf S v Gqozo 1994 (1) BC LR 1 (C k).
[70] See S v Lwane 1966 (2) SA 433 (A) 437G-H.
[71] State v Williams 343 A 2d 29 (1975).
[72] Criminal Procedure (above) 600.
[73] 1995 (2) SAC R 605 (W).
[74] 390 US 377 (1968).
[75] In s 60(11B)(c).
[76] This aspect is returned to below.
[77] 1999 (2) SAC R 169 (C ).
[78] A requirement set by the provisions of s 60(11B)(c) of the Act. It is submitted that the need to be warned before an accused 'testifies' includes
testimony proffered by way of affidavit.
[79] 2000 (1) SAC R 603 (T).
[80] The ratio being that a represented accused should not be in a worse position than one unrepresented when it comes to the exercise of
constitutional rights.
[81] 2006 (1) SAC R 60 (N).
[82] 618 F 2d 1169 (1980).
[83] Miranda v Arizona 384 US 436 (1966), where the accused's right to be warned of his right to silence in protection of his Fifth Amendment right
against self-incrimination was asserted.
[84] 1992 (1) SAC R 347 (A).
[85] At 352i-353b.
[86] At 353g-h.
[87] AD case no 59/95, 28 March 1996 (unreported).
[88] 1996 (2) SAC R 14 (A).
[89] At 16b; 18d.
[90] At 18d-e: 'Wat die regsposisie betref voordat die [tussentydse] Grondwet in werking getree het, aanvaar ek dat daar gevalle mag wees waar
die beskuldigde nie 'n billike verhoor sou kry indien die borgverrigtinge by sy latere verhoor teen hom toegelaat word nie. Elke saak moet volgens sy
eie feite beoordeel word. In die huidige saak het die respondente 'n vrye keuse uitgeoefen om self in die borgaansoek te getuig en het vrylik verklaar
dat hulle skuldig pleit op die eerste aanklag. Hul kruisverhoor was bloot daarop gemik om vas te stel of die pleit van skuldig ten opsigte van een of
albei van die aanklagte geld. Die feite van die saak bied gevolglik geen rede, en geen ander goeie grond is voor ons aangevoer, om van die uitsprake
van hierdie Hof in S v Sithebe en S v Venter, beide supra, af te wyk nie. Die eerste regsvraag moet dus as volg beantwoord word: die getuienis van 'n
beskuldigde in 'n borgaansoek kan, mits dit andersins toelaatbaar is, by sy latere verhoor teen hom ingevolge art 235 van die Wet toegelaat word.'
[91] 1998 (2) SAC R 259 (C ).
[92] WLD case no A1237/93 (unreported).
[93] Magmoed (above).
[94] 1995 (2) SAC R 605 (W) 611j-612i.
[95] 1998 (1) SAC R 343 (C ).
[96] At 349h-350h. The court held that, notwithstanding the specific provisions of s 35(5) of the C onstitution, it was immaterial whether the interim or
final C onstitution were to be applied to the particular facts of the case.
[97] Introduced by Act 85 of 1997.
[98] 1998 (5) BC LR 552 (N).
[99] At 559B-C .
[100] 1999 (1) SAC R 39 (C ): 'Die regte waarna hier verwys word, in hoofsaak wat konstitusioneel verkry is deur enige persoon tydens 'n verhoor,
afgesien van die reg tot 'n billike, regverdige verhoor, is naamlik eerstens die swygreg en tweedens die reg om te weier om homself te inkrimineer.
Klaarblyklik dus moet daar bepaal word aan die hand van die feite van elke saak voor die hof wanneer daar uitsluitsel gegee wil word oor of 'n aspek
billik of regverdig is teenoor 'n beskuldigde, moet daar 'n proses begin word waarin (en ek sê dit sonder vrees van teenspraak) op ewehandige wyse
geoordeel moet word teenoor die twee partye wie se belange in gedrang is by so 'n beslissing. Anders gestel, die bepalings of iets billik of regverdig is
in so 'n geval kan nie net gedoen word binne die verwysingsraamwerk van die een party se belange nie: daar moet gelyktydig en ewehandig verwys
word na die belange van al twee die partye wat betrokke is. 'n Strafverhoor is uiteraard so 'n proses waarby twee partye betrokke is, enersyds die
belange van die beskuldigde en andersyds die belange van die Staat, die gemeenskap vir wie die Staat verteenwoordig.'
[101] At 43d-g.
[102] 1999 (2) SAC R 137 (C ) 144e-h.
[103] 1999 (2) SAC R 51 (C C ).
[104] Above, 150h.
[105] In para [97].
[106] 1996 (4) SA 187 (C C ).
[107] In paras [13]-[14].
[108] Above.
[109] Above.
[110] 2007 (1) SAC R 566 (C C ) 608ff.
[111] 2012 (1) SAC R 25 (WC C ).
[112] (559/09) [2010] ZASC A 29 (26 March 2010), unreported elsewhere at the time of writing.
[113] S v Mabena and Another 2007 (1) SAC R 482 (SC A).
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9
The issues in bail hearings
9.1 Introduction
If the purpose of bail [1] and the delicate balance which ought to be struck between the liberty of the individual, on the one
hand, and the administration of justice, [2] on the other hand, are borne in mind, it appears that a court faced with a bail
application is expected to consider one issue only: will a refusal of bail constitute an injustice because it is unnecessary—or
must bail be refused in order to safeguard the interests of justice, irrespective of the effect of such refusal on the individual
accused? In striving to strike a balance between the interests of the accused and the interests of justice, [3] the court will
assess the risks involved in releasing the accused from custody. The paramount considerations are (a) whether the
accused's release will jeopardise public safety or the public interest; (b) whether the accused will commit offences while on
bail; (c) whether the accused will stand trial; and (d) whether the accused will interfere with state witnesses. In assessing
these risk factors the court will each time be faced with a number of additional considerations, which may vary from case to
case. [4] These factors and considerations are discussed in the following paragraphs.
9.2 Risk of endangering public safety or committing further offences: the established
approach
Authority exists for the contention that bail may be refused if a real likelihood exists that the accused will commit further
offences while on bail. [5] Although evidence is sometimes presented of the existence of, for instance, a long-standing
conspiracy to commit a series of offences, bail is most frequently refused on this ground on account of a propensity on the
accused's part for committing certain offences. [6] It is submitted that the propensity in question must relate to the
commission of offences that are inherently substantially harmful to public safety, [7] and will probably be confined to serious
crimes of
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violence. [8] Furthermore, as one is concerned here with preventative measures [9] which involve more than the customary
considerations in bail applications, [10] bail will be refused only after a most careful consideration of the issue.
A mere unsubstantiated fear or suspicion [11] that the accused will commit further offences is insufficient to warrant the
refusal of bail: such allegations must be properly substantiated by evidence or material from which an irresistible inference of
the accused's propensity can be made. [12]
9.3 Risk of endangering public safety or committing further offences: s 60(4)(a) and
s 60(5)
Save for s 60(4) of the Act, which stipulates that the refusal of bail 'shall be in the interests of justice' where one of the
grounds mentioned in sub-sections 60(4)(a) to (e) is present, the considerations contained in sub-paragraphs (a) to (d)
are no different from the established approach. These were described by Conradie J in S v C [13] as the 'gewone
omstandighede', or ordinary circumstances, which were in any event considered in bail hearings prior to the introduction of
the amendments to s 60 of the Act in 1995. Section 60(4)(a) of the Act thus describes the first of those considerations
which may justify the refusal of bail in the 'interests of justice':
W here there is the likelihood that the accused, if he or she w ere released on bail, w ill endanger the safety of the public or any
particular person or w ill commit a Schedule 1 offence. . . .
What is new in the 1995 version of the Act, however, is the legislature's attempt to assist the court by guiding it through
additional considerations which may tend to establish the presence or absence of risk under the relevant heading. Thus`, s
60(5) provides as follows:
In considering w hether the ground in sub-section (4)(a) has been established, the court may, w here applicable, take into account the
follow ing factors, namely—
(a) the degree of violence tow ards others implicit in the charge against the accused;
(b) any threat of violence w hich the accused may have made to any person;
(c) any resentment the accused is alleged to harbour against any person;
(d) any disposition to violence on the part of the accused, as is evident from his or her past conduct;
(e) any disposition of the accused to commit offences referred to in Schedule 1, as is evident from his or her past conduct;
(f) the prevalence of a particular type of offence;
(g) any evidence that the accused previously committed an offence referred to in Schedule 1 w hile released on bail; or
(h) any other factor w hich in the opinion of the Court should be taken into account.
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It is evident from this exposition that the court has an unfettered discretion as to the factors or considerations it wishes to
take into account in assessing the bail risk. However, the sub-section sends a clear message to judicial officers that a bail
risk may more readily be found to exist where the crime is a particularly violent one; or where the accused may harbour a
motive to commit an act of violence against another person; or where the accused has a history of crime and, in particular,
violent crime. A number of these considerations seem to overlap with those which one would have expected to be included
in the legislative guidelines with regard to some of the other risk indicators. (No significance should, however, be read into
their inclusion under this sub-section and not any of the others: a diligent magistrate will be alive to the relevance of the
considerations to an assessment of several of the bail risks.) It is also important to bear in mind that the guidelines were
clearly not intended to be exhaustive.
9.4 Risk of abscondment: the established approach [14]

Whenever a person has been arrested on a charge in consequence of which he faces the prospect of punishment which may
be severe and which may even consist of a term of imprisonment, [15] the risk of abscondment will be ever present. The
court will assess this risk by first assessing the likely degree of temptation to abscond which may face the accused. This
may be done by way of considering, first, the gravity of the charge, for the more serious the charge, the more severe the
sentence is likely to be. [16] Thus, it was observed in S v Nichas [17] that 'if there is a likelihood of heavy sentences being
imposed the accused will be tempted to abscond.' In that case the offence charged related to R4 million, and it appeared
that a crime syndicate had been involved. In S v Ho [18] the court observed that the possibility of a severe sentence
'enhanced any possible inducement to [the accused] to abscond . . .', while in S v Hudson [19] it was asserted that 'the
expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to [the accused] to abscond
and leave the country'. This does not mean, however, that bail should not be granted in serious cases [20] or that the
accused incurs a (or an added) burden of proof. [21]
Page 141
Multiple charges against the accused may have an effect similar to a single serious charge. [22] On the other hand, the
likelihood of conviction of a lesser offence than that charged reduces the risk of abscondment. [23]
Second, the court will consider the relative strength of the state's case against the accused on the merits of the charge, and
therefore the probability of a conviction. [24] It stands to reason that the more likely a conviction, the greater will be the
temptation not to stand trial. It should be cautioned, however, that the strength of the state's case is but a factor to be
considered, and can never by itself constitute a bar to the grant of bail. After all, even those who admit guilt are eligible for
bail. Thus, in S v Viljoen [25] the SCA cautioned against tendency of some prosecutors (and courts) to embark on an undue
excursion into the merits of the state's case:
[Courts] must guard against converting every bail application into a protracted trial before the criminal trial. . . . Must the accused, at
the bail stage, give viva voce evidence that must be rebutted by the viva vice evidence of one or more police officers? The same scene
w ill repeat itself sooner or later before the trial Court. Could it ever have been the intention of the legislature that bail applications
should be a full dress rehearsal for the trial? I strongly doubt it. I am therefore of the view that the hearing of bail applications should
be kept w ithin reasonable limits subject to the provisions of the Act and the rights of the accused. (My translation.)
This is an aspect that is often overlooked by prosecutors and inexperienced judicial officers. Needless to say, the same
scenario repeated itself once more in Mooi, [26] where the bail application was heard by the regional court (but not by the
trial magistrate) during the ongoing trial. Instead of the bail application focusing on genuine bail considerations, a full trial on
the merits was permitted to take place in the magistrate's court. In his concluding argument the prosecutor made not a
single reference to bail, but confined himself exclusively to the trial merits of the case; and the magistrate all but followed
suit. The subsequent bail appeal was turned down by the Western Cape High Court. In a further appeal to the SCA Navsa
JA, during argument, referred to the strength of the state's case being the 'fulcrum' of the appeal, but proceeded to point
out that the appellant had an answer for each category of evidence against him and was not a bail risk in terms of any of
the provisions of s 60(4) of the Act. The court went on to grant bail. In her reasons for judgment [27] Snyders JA said the
following:
Page 142
[8] Despite the confidence of the State in its evidence against the appellant it w as evident that the investigating officer over-stated
that case during the course of his evidence. Cross examination revealed that the fingerprint of the appellant w as found on the Polo
motor vehicle and not in it, that there w ere some issues around the reliability of the identification of the appellant during an
identification parade and in court, that the photographs made from the CCTV recording (these are not part of the record of the
proceedings before us) did not show the facial features of the robbers and revealed a dispute about w hether the person that the
State alleged w as the appellant w as w earing a multi-coloured striped T-shirt or a black and w hite striped jersey, similar to a rugby
jersey. It is necessary to record that the ow ner of the Polo w as allegedly know n to the appellant and that w as the reason for the
possible presence of the fingerprint, w hich the appellant has not yet acknow ledged w as his.
[9] Despite the investigating officer stating that the State has a strong case against the appellant, his evidence did not reveal this.
The State has not managed, in a period of tw o and a half years, to complete the evidence of their alleged strong case in the trial
court. The State did not baulk at the accusation that it caused most, if not all, the delays in the matter. At the time that the
magistrate heard the bail application, it w as envisaged that the State w as going to close its case after a further three day hearing
during May 2012. That date has now come and gone and this Court w as informed that the State did not proceed w ith its case against
the appellant, but postponed it again until the end of May 2012. Counsel appearing for the State before us, w ho is not counsel
appearing at the trial of the matter, w as in the unenviable position that she w as unable to give the assurance that the State's case is
going to proceed and be completed during the postponed hearing at the end of the month. She w as also unable to indicate, despite
the fact that she enquired about it, w hat the evidence w as that the State still intended to lead.
[10] According to the investigating officer's evidence, the source of all of the evidence against the appellant became know n on the
day of the incident and therefore there could not have been any difficulty gathering it. No difficulty w as pointed to on behalf of the
State. The inordinate delay in presenting this asserted strong case on behalf of the State is unexplained. In the circumstances the
delay since the trial started in November 2009, is significant and calls for an explanation that has not been forthcoming. On the
contrary, w hen asked for one during his evidence, the investigating officer displayed an arrogant and obstructive attitude.
The learned judge of appeal considered the appellant's personal circumstances, together with the fact that he posed no risk
of flight nor of endangering the public, in conjunction with the relative weakness of the state's case and the inordinate trial
delays caused by the state, and concluded that these factors, cumulatively, constituted exceptional circumstances
permitting the appellant's release on bail.
Third, the court will be mindful of the accused's potential mobility and access to travel beyond the country's borders. [28]
Courts should guard against an unrealistic approach to this consideration, for there is little the accused can do to dispel this
fear, save for surrendering his travel documents. It may very well be unfair to demand the accused's passport as a
safeguard, but then to rule that this is insufficient in the light of our country's extensive uncontrolled borders.
Fourth, a factor that will count heavily, particularly if the accused is potentially highly mobile, is the possibility that the
accused may receive asylum in a country
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that does not have an extradition treaty with South Africa. [29] Since South Africa's readmission to the Commonwealth,
however, informal extraditions have been increasingly achieved at diplomatic level, causing this particular risk to recede.
Fifth, the risk of abscondment is likely to be assessed at a relatively high level if the accused is a foreign national, [30] a
risk factor that is likely to be compounded by high mobility potential and access to foreign travel. This does not mean, of
course, that such accused may never be granted bail, for there is always the option of imposing conditions to suit a
[31]
particular case. [31]
Sixth, the accused's previous convictions may be of such gravity or multiplicity or nature that he may be tempted to
abscond in the belief that he is likely to receive a severe sentence on account of them. [32]
Seventh, due weight will be given to evidence which indicates that the accused contemplates suicide, [33] for the
accused's self-inflicted death will jeopardise the proper administration of justice as much as will his abscondment. It may be
stated that the accused's abscondment, for instance by fleeing the country, constitutes a relative or provisional evasion of
his trial, whereas his contemplated suicide, if carried out, would amount to an absolute (or a permanent) evasion. For that
reason it is always surprising when bail applications are launched by accused persons on the basis that they constitute
suicide risks: one would have thought that such a ground provided sound reason for a court to be disinclined to grant
bail. [34] Again, however, the presence of this factor should not be given 'so much importance as substantially to deprive the
applicant of [the privilege of being granted bail]'. [35]
An eighth consideration is the character of the accused. Although this represents a weight in the scales, [36] it does not
mean that a person of good character must be granted bail, for the other considerations discussed above are of overriding
importance. [37] As was submitted above, [38] it is unfortunate that the financial element of bail is emphasised in our law at
the expense of the character and integrity of the accused. [39]
A ninth consideration is the accused's past response to being released on bail. Inasmuch as the consideration of an
application for bail requires of a court to project itself into and to predict the future, it follows that the accused's past track
record will be an exceptionally strong indicator of what may be expected from
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him in the future. If the accused, on a previous occasion, religiously observed his bail conditions, that will count in his
favour. [40] If, on the other hand, the accused had in the past absconded, that will count against him. [41] It is submitted
that the previous conduct of the accused's associates or ideological comrades or co-accused upon being released on bail
has only limited relevance and should be considered with great caution: [42] it is the individual accused who should be
assessed by the court.
9.5 Risk of abscondment: s 60(4)(b) and s 60(6)

As with the sub-section preceding it, s 60(4)(b) of the Act introduces no innovation into our bail law. The sub-section
provides that the refusal of bail 'shall be in the interests of justice'—
W here there is the likelihood that the accused, if he or she w ere released on bail, w ill attempt to evade his or her trial. . . .
This aspect represents perhaps the primary (and certainly the best-known) bail consideration encountered in terms of the
established approach. [43] However, s 60(6) is a new sub-section of the Act, which provides that a court, in assessing the
risk of abscondment, may take into account the following grounds:
(a) the emotional, family, community or occupational ties of the accused to the place at w hich he or she is to be tried;
(b) the assets held by the accused and w here such assets are situated;
(c) the names, and travel documents held by the accused, w hich may enable him or her to leave the country;
(d) the extent, if any, to w hich the accused can afford to forfeit the amount of bail w hich may be set;
(e) the question w hether the extradition of the accused could readily be effected should he or she flee across the borders of the
Republic in an attempt to evade his or her trial;
(f) the nature and the gravity of the charge on w hich the accused is to be tried;
(g) the strength of the case against the accused and the incentive that he or she may in consequence have to attempt to evade his
or her trial;
(h) the nature and gravity of the punishment w hich is likely to be imposed should the accused be convicted of the charges against
him or her;
(i) the binding effect and enforceability of bail conditions w hich may be imposed and the ease w ith w hich such conditions could be
breached; or
(j) any other factor w hich in the opinion of the court should be taken into account.
It is puzzling that the legislature has perceived a need to insert sub-section 60(6) into the Act: the considerations contained
in its guidelines have been recognised time and again in terms of the established approach that our courts have taken to
the assessment of the risk of abscondment, and are trite. It is not surprising that many magistrates have reacted with
indignation to this legislative
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spoon-feeding, for it manifests an almost insulting lack of confidence in their ability to familiarise themselves with and apply
the common law as extolled by the higher courts over the years.
9.6 Risk of interference with state witnesses: the established approach

The primary interest that is sought to be protected when the risk of interference with state witnesses (or, for that matter,
with the police investigation) is assessed is the proper administration of justice. It is therefore somewhat vague and
imprecise to refuse bail in order to 'safeguard and ensure the proper administration of justice'. [44] It is submitted that the
proper approach is to ask whether it is likely that the accused will, not may, interfere with state witnesses in the sense that
he will attempt unduly to influence the content or slant of their evidence or to persuade them not to testify against him at
all. [45]
First, the court will consider whether there has been actual interference with state witnesses by the accused. Thus, bail
was refused in R v Phasoane [46] where the accused had actually induced a potential witness to change her evidence by
blaming someone else for the crime charged, while in Ex parte Nkete [47] bail was refused because the lives of two principal
witnesses had been threatened by the accused.
Second, the court will consider interference with state witnesses by the accused in previous cases. In S v Hlongwa [48] it
was pointed out that the 'accused's past record, particularly if it includes a conviction for defeating or obstructing the ends
of justice by tampering with a State witness, is clearly relevant in this connection'. This factor is not, however,
conclusive. [49]
Third, in the absence of actual interference in the pending case or in a case in the past, well-grounded fears of
interference will suffice to block the accused's release on bail. The mere suspicion that the accused will interfere with state
witnesses is clearly insufficient. [50] If bail is opposed on the basis of fear that the accused may interfere with state
[51] [52] [53]
witnesses, such fear will have to be substantiated [51] by means of clear evidence. [52] In Bennett [53] it was held that 'the
proper approach should be that, unless the state can say that there is a real risk
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that [the accused] will, not merely may, interfere, there does not appear . . . to be a reasonable possibility of such
interference'.
Fourth, the court may consider the position of the accused. Not only is it 'relevant and desirable to determine the type of
man the accused is: whether he is the type who will refrain from exerting influence over witnesses in the event of his
meeting them' [54] —a factor from which the court can form an estimate as to whether or not a risk of tampering with
witnesses exists [55] —but it is also necessary for the court to be aware of the accused's opportunity for influencing
witnesses. [56]
Fifth, the court may have regard to the position of the witness in order to assess his susceptibility to suggestion or other
undue influence, or to intimidation. Thus, close family ties [57] between the accused and the witness must clearly be relevant.
So, too, the fact that the witness is a child or a youth [58] or an employee of the accused. [59] However, the existence of a
bond of some sort between the accused and a witness does not imply that bail can or should never be granted in such
cases. [60]
In the sixth place, the court may consider the state of investigation of the case. Thus, where statements have not yet
been taken from witnesses (or exhibits have not yet been recovered) [61] the risk of tampering [62] is greater than where the
witness has already committed himself in a statement to the police. [63]
In assessing the risk of interference with state witnesses (and, if bail is granted, in formulating bail conditions) the court
must identify the state witnesses. It is submitted that it is correct to include all potential witnesses, [64] but not co-
accused. [65] It is unacceptable to leave it to the accused to speculate who the witnesses might be, and to expect him to
regulate his conduct in accordance with such speculation. [66] Regrettably, a trend has developed whereby prosecutors tend
to withhold witness statements and the names of proposed witnesses from the accused under the guise of implied threats
of intimidation of the witnesses. This places the accused in the impossible position of having to guess with whom he should
refrain from communicating. The underlying reasoning of such prosecutors is, of course, fundamentally flawed: if it is alleged
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that the accused has threatened a witness, it follows as the night the day that he must be aware of the identity of the
witness! The practice suggested in Dockrat [67] whereby the accused should be given a list of names of persons with whom
he should not communicate about the case is commendable and should be followed.
9.7 Risk of interference with state witnesses: s 60(4)(c) and s 60(7)

The provisions of s 60(4)(c) of the Act are again not new and merely constitute statutory recognition of a well-established
bail consideration. The sub-section provides that the refusal of bail 'shall be in the interests of justice'—
W here there is the likelihood that the accused, if he or she w ere released on bail, w ill attempt to influence or intimidate w itnesses or
to conceal or destroy evidence . . .
The factors that a court, in considering this aspect, may take into account, are set out in s 60(7) as follows:
(a) the fact that the accused is familiar w ith the identity of w itnesses and w ith the evidence w hich they may bring against him or
her;
(b) w hether the w itnesses have already made statements and agreed to testify;
(c) w hether the investigation against the accused has already been completed;
(d) the relationship of the accused w ith the various w itnesses and the extent to w hich they could be influenced or intimidated;
(e) how effective and enforceable bail conditions prohibiting communication betw een the accused and w itnesses are likely to be;
(f) w hether the accused has access to evidentiary material w hich is to be presented at his or her trial;
(g) the ease w ith w hich evidentiary material could be concealed or destroyed; or
(h) any other factor w hich in the opinion of the court should be taken into account.
Of primary importance is the statutory requirement (based on simple common sense) that it is the accused's own conduct,
and not that of his family or comrades, which should be assessed. Too often this simple requirement is misconstrued by
prosecutors or overlooked by the courts, to the prejudice of the accused.
Prosecutors often resort to the uncompleted status of the police investigation in order to secure the unjustified further
detention of the accused. While in rare cases this might be a valid consideration, it is not one that applies generally. Thus it
was said in S v Kock [68] that an 'ongoing investigation', on the facts of the case, was 'not something supporting a refusal
of bail'.
Section 60(7) contains an obvious anomaly which, however, was not absent from the treatment of this particular bail risk
according to the traditional approach: it is likely to count against the accused if he is familiar with the identity of witnesses;
but, at the same time, the accused could hardly be expected to refrain from communication with state witnesses if he is not
made aware of their identity. A disturbing ploy indulged in by some prosecutors since
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the introduction of this sub-section has been to disclose the identity of the witness to the accused during cross-
examination and then to claim that the accused falls foul of the provision! It is submitted that this practice should be
discouraged and that judicial officers should take an uncompromising stand on the issue.
As regards the risk of real evidence being concealed or destroyed, such risk must be greater in the early stages of the
investigation of the case. An accused person will be well-advised to withhold his application for bail until such time as the
police have had a reasonable opportunity of completing their preliminary investigations, including the seizure of items of real
evidence. In S v Dhlamini [69] the court held that the fact that an identification parade and the results of a ballistics
examination were still outstanding at the time when the application for bail was brought (a mere day after the offence was
committed) justified the refusal of bail.
9.8 Risk of jeopardising the criminal justice system: the established approach
This consideration is akin to that of the danger that the accused might commit further offences while on bail. However, one
is not concerned here with propensity, but rather with a threat to public safety [70] (or law and order) and state
[71] [72] [73]
security. [71] This was fairly recently confirmed in the two S v Ramgobin judgments. [72] In R v Morales [73] Lamer CJC,
writing for the Supreme Court of Canada, stated the following in relation to a section of the Criminal Code:
I am also satisfied that the public safety component of s 515(10)(b) [of the Criminal Code] is necessary to promote the proper
functioning of the bail system and is not undertaken for any purpose extraneous to the bail system. In my view , the bail system does
not function properly if an accused interferes w ith the administration of justice w hile on bail. The entire criminal justice system is
subverted if an accused interferes w ith the administration of justice. If an accused is released on bail, it must be on condition that he
or she w ill refrain from tampering w ith the administration of justice. If there is a substantial likelihood that the accused w ill not give
this co-operation, it furthers the objectives of the bail system to deny bail.
In my view , the bail system also does not function properly if individuals commit crimes w hile on bail. One objective of the entire
system of criminal justice is to stop criminal behaviour. The bail system releases individuals w ho have been accused but not convicted
of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the
accused w ill not engage in criminal activity pending trial. In Pearson, the reality that persons engaged in drug trafficking tend to
continue their criminal behaviour even after an arrest w as one basis for concluding that there is just cause to require persons
charged w ith certain narcotics offences to justify bail. Similarly, if there is a substantial likelihood that the accused w ill engage in
criminal activity pending trial, it furthers the objectives of the bail system to deny bail.
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Again, evidence on this risk must be considered with the utmost circumspection, and bail will not be refused unless the
opposition thereto is bolstered by evidence of substance.
9.9 Risk of jeopardising the criminal justice system: s 60(4)(d) and s 60(8)
Whereas, historically, bail has been refused in appropriate cases on the basis of the risk that the accused would jeopardise
the criminal justice system (including the bail system), [74] s 60(4)(d) and s 60(8) of the Act create the appearance that the
legislature may have had other considerations in mind. Thus, s 60(4)(d) appears clear enough where it states that the
refusal to grant bail may be justified
[w ]here there is the likelihood that the accused, if he or she w ere released on bail, w ill undermine or jeopardise the objectives or the
proper functioning of the criminal justice system, including the bail system.
However, the guidelines provided in s 60(8) of the Act provide that a court may take into account the following factors:
(a) the fact that the accused, know ing it to be false, supplied false information at the time of his or her arrest or during the bail
proceedings;
(b) w hether the accused is in custody on another charge or w hether the accused is on parole;
(c) any previous failure on the part of the accused to comply w ith bail conditions or any indication that he or she w ill not comply w ith
any bail conditions; or
(d) any other factor w hich in the opinion of the court should be taken into account.
This appears to be a move away from the traditional approach, although s 60(8)(d) is of course broad enough to
encompass the traditional considerations. Thus, the Constitutional Court in S v Dlamini [75] expressed the view that s
60(4)(d) was 'directed at protecting and promoting the integrity of the investigation and presentation of the case in respect
of which the detainee has been arrested. Those are undoubtedly the primary and most commonly expressed objectives of
pre-trial detention'. Steytler [76] would appear to be correct in calling s 60(4)(d) of the Act 'an open category' under which all
the other aspects of s 60(4) could conceivably resort. [77]
It should be noted that the mere fact that one of the factors enumerated in the s 60(8) guidelines happens to be present
does not, without more, preclude the accused from being granted bail: a careful investigation should be made by the court
to determine whether, for instance, false information supplied at the time of the accused's arrest necessarily jeopardises the
bail system, or whether a failure by the accused to comply with bail conditions in the past necessarily indicates that he would
do so in future.
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9.10 Risk of disturbing the public order etc: s 60(4)(e) and s 60(8A)
The provisions of s 60(4)(e) and s 60(8A) of the Act are new, and do not appear to have clearly identifiable historical roots.
Section 60(4)(e) provides that the refusal of bail shall be in the interests of justice
[w ]here in exceptional circumstances there is the likelihood that the release of the accused w ill disturb the public order or undermine
the public peace or security.
The guidelines which the legislature has provided to courts considering whether a s 60(4)(e) ground has been established,
read as follows:
(a) w hether the nature of the offence or the circumstances under w hich the offence w as committed is likely to induce a sense of
shock or outrage in the community w here the offence w as committed;
(b) w hether the shock or outrage of the community might lead to public disorder if the accused is released;
(c) w hether the safety of the accused might be jeopardised by his or her release;
(d) w hether the sense of peace and security among members of the public w ill be undermined or jeopardised by the release of the
accused;
(e) w hether the release of the accused w ill undermine or jeopardise the public confidence in the criminal justice system; or
(f) any other factor w hich in the opinion of the court should be taken into account.
On the face of it, these are appalling provisions calculated to appeal to the base instincts of an uninformed or ignorant
public. Thus, in S v Schietekat [78] the court described the considerations contained in s 60(8A) as being
no more than expression, in statutory form, of w hat amounts to lynch law . It is true to say that it is the duty of courts of law to
ensure the maintenance of law , order and justice and so prevent that greatest of all evils, a criminal justice system so w eak and
vacillating that people feel the need to avoid the courts and take the law into their ow n hands. Despite this courts have a greater
obligation to society at large. They must jealously guard the rule of law . That is the lesson of this century. A court of law must not
permit the body politic to give legislative credibility, for w hatever reason, to uninformed or ignorant public outcry, or to w hat the
government of the day perceives w ill best assuage those feelings of the general public w hich, if quelled, are calculated to do no more
than to ensure that it be returned to elected office, w hether it deserves to be or not.
It is of little consolation that courts are not compelled to consider the factors set out in s 60(8A), but may do so in their
discretion. [79] Indeed, one would think that to elevate the sentiments of the community above the interests of the accused
would be constitutionally impermissible.
In dealing with these extraordinary provisions, it should be borne in mind, first, that shock or outrage induced in the
community does not by itself satisfy the objectives of s 60(4)(e): such shock and outrage must, in addition, lead to a
likelihood that the accused's release will disturb the public order or undermine
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the public peace or security. [80] As will appear from the Constitutional Court judgment in S v Dlamini, [81] it is incumbent
upon the state to prove the existence of exceptional circumstances which would lead to the likelihood that the accused's
release will have the effect contemplated by s 60(4)(e).
Thus, Kriegler J held as follows in S v Dlamini [82]
[57] It is important to note that sub-section (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 w here it is really
justified. W hat is more, sub-section (4)(e) also expressly stipulates that a finding of such exceptional circumstances has to be
established on a preponderance of probabilities ('likelihood'). Lastly, once the existence of such circumstances has been established,
paragraph (e) must still be w eighed against the considerations enumerated in sub-section (9) before a decision to refuse bail can be
taken. Having regard to these jurisdictional prerequisites, the field of application for sub-sections (4)(e) and (8A) w ill be extremely
limited. Judicial officers w ill therefore rely on this ground w ith great circumspection in the know ledge that the Constitution protects the
liberty interests of all.
One finds no definition in the Act of 'exceptional circumstances' as envisaged by s 60(4)(e), nor has the term been defined
judicially. However, it is submitted that a court should be slow to find the existence of exceptional circumstances, no matter
how heinous the crime: it is not inconceivable that the most serious of crimes may leave the public cold, whereas an
unexceptional crime may stir the public passion without exceptional circumstances legitimately being present.
9.11 Factors personal to the accused

In considering whether or not an application for bail should be successful the court is entitled and, it is submitted, expected
to pay due regard to the personal factors unique to the accused which may have a bearing on the matter. This does not
mean that personal circumstances will necessarily sway the decision in favour of bail being granted, for in a number of
cases [83] bail was refused even though the accused seemed to have made out a strong case based on personal factors.
The fact that the accused is in poor health generally, or requires specialist treatment for a specific ailment, may reduce
the risk of abscondment or the commission of further crimes in a particular case, but is nevertheless unlikely to tip the
scales in the accused's favour: it has been held repeatedly that medical attention and even hospitalisation are available to
persons in custody. [84] However, the very fact of detention may so detrimentally affect a particular person's mental health
that his continued incarceration could be seen to be
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contrary to the interests of justice. [85] In such cases, on clear evidence, the accused's condition could operate in favour of
bail being granted.
The fact that the accused is of an advanced age may similarly indicate an unlikelihood of abscondment or some other
breach of bail conditions, but is nevertheless not regarded as a particularly cogent factor in a bail application. Thus, bail has
been refused a number of quite elderly accused. [86]
The fact that the accused is particularly young may weigh heavily in favour of bail being granted. The tenor of the Act is
such as to avoid the incarceration of minors, [87] and youths should be released in the custody of their elders (or detained
in places of safety) as far as possible. [88]
The accused's race ought not to play a part in a bail application, but case law [89] and studies [90] reveal that this factor
does indeed often prove conclusive.
Similarly, the gender of the accused ought not to be accorded undue weight. It should, however, be borne in mind that
courts are generally reluctant to sentence women to imprisonment, and this may account for the high percentage of females
granted bail in our courts. [91]
The fact that the accused has dependants to support [92] or a business to run [93] is of little consequence in the
assessment of his bail prospects, except inasmuch as those factors point to stability on his part which reduces the risk of
abscondment. [94]
The accused's financial position may also be a pointer as far as his stability in the community is concerned. [95] However,
it is submitted that it would be wrong to read more into this factor: it has been unconvincingly argued that a wealthy
person is a better bail risk than a poor one, owing to the fact that he has so much more to lose in the event of
abscondment [96] (the other side of the coin is that he is so much more able to acquire the means of abscondment and
successful resettlement in a foreign country). [97]
In addition to the established considerations discussed above, s 60(10) of the Act imposes a duty on a court hearing a
bail application 'to weigh up the personal interests of the accused against the interests of justice', even in
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unopposed bail applications. These personal interests of the accused are enumerated in s 60(9) of the Act, which reads as
follows:
In considering the question in sub-section (4) [that is, w hether the refusal to grant bail shall be in the interests of justice] the court
shall decide the matter by w eighing the interests of justice against the right of the accused to his or her personal freedom and in
particular the prejudice he or she is likely to suffer if he or she w ere to be detained in custody, taking into account, w here applicable,
the follow ing factors, namely—
(a) the period for w hich the accused has already been in custody since his or her arrest;
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused w ith regard to such
delay;
(d) any financial loss w hich the accused may suffer ow ing to his or her detention;
(e) any impediment to the preparation of the accused's defence or any delay in obtaining legal representation w hich may be brought
about by the detention of the accused;
(g) any other factor w hich in the opinion of the court should be taken into account.
What immediately strikes one about the wording of the sub-section is the requirement that the 'interests of justice' should
be weighed up against the 'right of the accused to his or her personal freedom': that is, the inadvertent presumption on the
part of the legislature that the interests of justice are likely to be sought and found outside of the accused's right to
personal freedom. This, of course, is fundamentally unsound, as it is wholly conceivable that the accused's right to personal
[98]
freedom should be in the interests of justice (more so in a constitutional democracy). Thus, for instance, in S v Dlamini [98]
the Constitutional Court said the following:
Bail serves not only the liberty interest of the accused, but the public interest by reducing the high number of aw aiting trial prisoners
clogging our already overcrow ded correctional system, and by reducing the number of families deprived of a breadw inner.
It is clear from this quotation that the Constitutional Court rightly ignored the apparent distinction made by the legislature
between the interests of justice, on the one hand, and the interests of the accused (and more specifically, his interest in his
personal freedom) on the other. To the same effect is the following statement by Comrie J in S v Tshabalala [99] (albeit in
the context of a consideration of the meaning of s 60(11)):
The same phrase [that is, 'interests of justice'] forms part of the right entrenched by s 35(1)(f) of the Constitution. I am satisfied that
the 'interests of justice' there referred to must bear a w ider meaning, so as to include as relevant factors the right to personal
freedom, the prejudice flow ing from continued detention and other matters of the kind set forth in s 60(9). It seems to me that the
framers of the Constitution could not have intended in s 35(1)(f) to equate the interests of justice w ith the interests of the police and
the Attorney-General, w ith the resultant exclusion of the other factors w hich I have mentioned. Justice is a broader concept than that.
Moreover, s 35(1)(f) should be interpreted in the light of the right to freedom and security of
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the person w hich is entrenched by s 12 of the Constitution. . . . I w ould accordingly interpret the interests of justice . . . as
comprehending both the s 60(4)(c) issue of possible interference and the s 60(9) interests of the applicant.
Steytler [100] sums up as follows:
The court is compelled in terms of section 60(9) CPA to w eigh 'the interests of justice against the right of the accused to his or her
personal freedom'. This implies a proportionality test; the likely harm must be w eighed against the deprivation of liberty.
The individual components of s 60(9) are otherwise unremarkable and add nothing to our common-law jurisprudence. [101]
9.12 The words 'interests of justice' in s 60 and s 35(1)(f) of the Bill of Rights
The words 'interests of justice' were first used in the bail context in s 25(2)(d) of the interim Constitution, which provided
that every arrested person had the right 'to be released from detention . . . unless the interests of justice require
otherwise'. This sentiment was reflected in the 1995 amendment of the Act, which introduced the phrase into the new s
60(1)(a) in the following context:
An accused w ho is in custody in respect of an offence shall . . . be entitled to be released on bail at any stage preceding his or her
conviction in respect of such offence, unless the court finds that it is in the interests of justice that he or she be detained in custody.
Apart from s 60(1) of the Act, the phrase appears in s 60(4), 60(9), 60(10), 60(11) and 60(12). However, since the phrase
was introduced into the Act by means of the 1995 amendment, the interim Constitution was replaced by the 1996
Constitution which brought with it s 35(1)(f), which reads as follows:
Everyone w ho is arrested for allegedly committing an offence has the right to—
...
(f) be released from detention if the interests of justice permit, subject to reasonable conditions.
The following questions arise by virtue of these enactments: do the words 'interests of justice' bear the same meaning in s
60(1)(a) of the Act as they did in s 25(2)(d) of the interim Constitution? Do they bear the same meaning as in s 35(1)(f) of
the Constitution? And are the words to be accorded a consistent meaning throughout the Act?
In S v De Kock [102] it was stated that the phrase 'interests of justice' as employed in s 25(2)(d) of the interim
Constitution meant no more than the usual factors which were customarily taken into account in bail matters. In S v Mbele
and
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Another [103] the view was expressed that s 25(2)(d) of the interim Constitution had no procedural implications, prompting
the following academic response: [104]
The right to be released from detention is dependent on w hether “'the interests of justice' so permit. The concept is by definition
broad and provides the courts the opportunity to define the legal rules and principles in terms of w hich the bail decision should be
made. A view that section 35(1)(f) deals only w ith substantive issues and is neutral as to matters procedural cannot be sustained. It
constitutionalises both the grounds on w hich bail may be denied and the procedural rules pertaining to the exercise of the court's
discretion.
Commenting on the replacement of s 25(2)(d) of the interim Constitution by s 35(1)(f) of the Constitution, Kriegler J in S v
Dlamini [105] points out that the apparent harmony which existed between the former provision and s 60(1)(a) of the Act
has been disturbed by the wording of the latter provision which did not, however, lead to a corresponding amendment of s
60(1)(a) of the Act:
It therefore still echoes the former provision, although a person's constitutional right to release from custody is now dependent on a
finding that the interests of justice permit it. Consequently, s 60(1)(a) favours liberty more than the minimum required by the
Constitution.
The Constitutional Court goes on [106] to observe that s 60(1) of the Act 'was designedly reworded by the 1995
amendment so as to bring it into conformity with s 25(2)(d) of the interim Constitution', and points out that, when s
35(1)(f) of the Constitution replaced its interim Constitution counterpart, 'the wording of s 60(1) and the preamble to sub-
section (4) no longer fitted'. The Constitutional Court continues: [107]
[45] . . . There remain the problems adumbrated earlier arising from the non-fit betw een [the w ording of s 60(4)-(9)] and the
provisions of s 35(1)(f) [of the Constitution]. And it is not only that s 35(1)(f) replaced the right under the former s 25(2)(d) w ith the
'right . . . to be released from detention if the interests of justice permit', and rendering the w ording of sub-section 60(1)(a) and the
preamble to sub-section (4) somew hat inapposite, but more because the default position changed: w hereas previously the starting
point w as that an arrestee w as entitled to be released, the position under s 35(1)(f) is more neutral. Now , unless there is sufficient
material to establish that the interests of justice do permit the detainee's release, his or her detention continues.
[46] The separate yet associated problem w ith sub-sections (4) to (9) arises from the use of the criterion of the interests of justice.
The term 'the interests of justice' is of course w ell-know n to law yers, especially students of South African constitutional law . It is a
useful term denoting in broad and evocative language a value judgment of w hat w ould be fair and just to all concerned. But w hile its
strength lies in its sw eep, that is also its potential w eakness. Its content depends on the context and applied interpretation. It is
also, because of its breadth and adaptability, prone to imprecise understanding and inapposite use.
It becomes clear from the Constitutional Court's judgment in S v Dlamini that the words 'interests of justice' as used in s
60(1)(a), 60(11) and 60(12) carry a
Page 156
broad, constitutional meaning; whereas the same words, as they appear in s 60(4), 60(9) and 60(10), bear a narrower
meaning which is more consistent with the 'public interest'. Thus: [108]
[47] Section 60 is a good example of w hat the consequences of such misapplication can be. In sub-section (1)(a) the term is used to
mirror the criterion of the governing constitutional provision. There the w ords bear the relatively broad meaning of a value judgment
taking into account the arrested person's right to liberty, as qualified by the law ful arrest. In other w ords, it is the overall evaluation
of all the interests involved. W here the w ords are used in sub-sections (4), (9) and (10) that meaning does not make sense,
how ever. For instance, in sub-section (9) the court is ordered to w eigh 'the interests of justice, against the right of the accused to his
or her personal freedom'. Obviously there the interests of justice cannot signify the final evaluation of w hat is best all round, because
that w ould include consideration of the liberty interests of the accused. Likew ise, in sub-section (10) w here one is told 'to w eigh up
the personal interests of the accused against the interests of justice', the latter term cannot logically embrace the former. It seems
reasonably clear that in those tw o sub-sections the drafters of the 1995 amendment had in mind a narrow er meaning than the
constitutional one used in sub-sections (1), (11) and (12). It is of course most unusual to find one and the same expression used in
one and the same statute but not bearing a consistent meaning. In our law , the legislature is presumed to use language
consistently, and one w ould deviate from the presumption w ith great hesitation and only if driven to do so, for example, because to
do otherw ise w ould lead to manifest absurdity, or w ould clearly frustrate the manifest intention of the law giver. The present seems to
be one of those rare instances w here one is compelled to deviate from the presumption of legislative consistency. Here it is plain that
the drafters of the 1995 amendment failed to distinguish betw een tw o separate and distinct meanings of the phrase 'the interests of
justice'. In three of the six sub-sections that w ere inserted at that stage, the phrase w as used synonymously w ith the interim
Constitution's criterion for bail; but in the case of three of the sub-sections—(4), (9) and (10)—something different must have been
intended. In those sub-sections the drafter must have contemplate [sic] something closer to the conventional 'interests of society'
concept or the interests of the state representing society.
It would therefore appear that the term 'interests of justice' should be read (at least in respect of s 60(4), 60(9) and
60(10)) to mean the 'interests of society' or the 'interests of the state representing society'. According the phrase this
particular meaning, it is submitted, does not ultimately assist in resolving the questions posed. In the Canadian case of R v
Morales [109] the Supreme Court had to consider the constitutionality of a provision in the Criminal Code which required the
denial of bail on the basis of the 'public interest' in certain circumstances. Said Lamer CJC, [110] after reviewing the
authorities quoted to the court:
In my view , these authorities do not establish any 'w orkable meaning' for the term 'public interest'. On the contrary, these authorities
demonstrate the open-ended nature of the term. Demyen, Kingwatsiak and Morenstein expressly recognised that 'public interest'
imports a standard w hich is completely discretionary. Powers and Dakin relied on an imprecise notion that the public interest justifies
denying bail w henever the public image of the Criminal Justice System w ould be compromised by granting bail. The cases in the
Quebec Superior
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Court relied on an imprecise notion that drug traffickers w ith no apparent defence should be denied bail. In my view , these
authorities demonstrate that the term 'public interest' has not been given a constant or settled meaning by the courts. The term
provides no guidance for legal debate. The term authorises a standardless sw eep, as the court can order imprisonment w henever it
sees fit. . . . As currently defined by the courts, the term 'public interest' is incapable of framing the legal debate in any meaningful
manner or structuring discretion in any w ay. Nor w ould it be possible in my view to give the term 'public interest' a constant or settled
meaning. The term gives the courts unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention. The
term creates no cirteria to define these circumstances. No amount of judicial interpretation of the term 'public interest' w ould be
capable of rendering it a provision w hich gives any guidance for legal debate.
9.13 The relevance of minor children of prisoners

It is trite that the fact that the accused is the parent of minor children and by law has to maintain them, is a factor that is
routinely taken into account by courts, not only when imposing sentence on a convicted person, but also in considering bail
in the pre-sentencing phase. [111] However, when the accused raises the constitutional rights of his minor children to
parental care, the issue becomes both more focused and complex. Thus, in S v Petersen [112] the accused, the mother of a
minor daughter, stood charged with the contract murder of her husband and the father of the child. Facing the onus
created by s 60(11)(a) of the Act, to prove the existence of exceptional circumstances permitting her release on bail, she
resorted to the rights of her minor child as constituting such circumstances. Van Zyl J dealt as follows with the issue: [113]
[63] W hen, as in the present case, the special circumstances relied on by the accused include the constitutionally protected interests
of a minor child, this court must, in terms of s 28(1)(b) of the Constitution, take cognisance of the child's right 'to family care or
parental care, or to appropriate alternative care w hen removed from the family environment'. Inasmuch as a decision in regard to the
appellant's bail application and subsequent appeal to this court w ill, of necessity, impact upon a child, it may not be lost from sight
that the child's best interests are, in terms of s 28(2) of the Constitution, paramount. This does not, of course, mean that such
interests w ill simply override all other legitimate interests, such as the interests of justice or the public interest. It must, how ever,
alw ays be taken into consideration as a relevant factor and a general guideline in assessing such competing rights. See Jooste v
Botha 2000 (2) SA 199 (T) at 210C-D.
[64] The case of S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312) dealt
w ith the interests of children w hose mother had been convicted of fraud and sentenced to imprisonment. Although the present case
deals w ith incarceration of the mother of a child pending trial, the interests of the child, it w ould appear, require consideration in the
same w ay as if the mother had been convicted and imprisonment w as being considered as an appropriate sentence. After discussing
s 28(2) of the Constitution (paras 12-26), Sachs J held (at para 26):
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'Accordingly, the fact that the best interests of the child are paramount does not mean that they are absolute. Like all rights in
the Bill of Rights their operation has to take account of their relationship to other rights, w hich might require that their ambit be
limited.'
[65] On the interaction of s 28(2) and 28(1)(b) of the Constitution, Sachs J accepted the view that, w hen a custodial sentence for a
primary caregiver w as in issue, the court had a fourfold responsibility: (a) to establish w hether such a sentence w ould impact on the
child; (b) to consider the child's best interests independently; (c) to attach appropriate w eight to the child's best interests; and (d) to
ensure that the child w ould be cared for should the primary caregiver be imprisoned (para 32). The learned judge continued (para
33):
'These appear to me to be practical modes of ensuring that s 28(2) read w ith s 28(1)(b), is applied in a sensible w ay. They take
appropriate account of the pressures under w hich courts w ork, w ithout allow ing systemic problems to snuff out their
constitutional responsibilities. Focused and informed attention needs to be given to the interests of children at appropriate
moments in the sentencing process. The objective is to ensure that the sentencing court is in a position adequately to balance
all the varied interests involved, including those of the children placed at risk . . . .'
He cautioned, how ever (para 34), that the issue w as not 'w hether parents should be allow ed to use their children as a pretext for
escaping the otherw ise just consequences of their ow n misconduct'. Parents should serve as 'the most immediate moral exemplars
for their offspring'. As primary caregivers they are expected to 'make moral choices for w hich they can be held accountable'.
9.14 The relevance of bail to referrals for observation ito s 78(2)

[114]
The accused in S v Volkman [114] was charged with murder, and had raised the defence of non-pathological criminal
capacity. He was granted and released on bail, a condition being that he should regularly, when required to, attend at
Valkenberg Psychiatric Hospital to undergo psychiatric observation in terms of s 78(2) of the Act. At the accused's request
it was ordered that such observation sessions should be held only during daylight hours. In due course, however, it
transpired that the staff at the hospital found the periodic opportunities for doing observation of the accused as an out-
patient to be inadequate for their purposes, resulting in an application by the state that the accused be committed to the
hospital as an in-patient (and accordingly in denial of his bail). Although the issue of bail was not the determining one in the
state's application for committal, there can be little doubt that the court was not prepared to deprive the accused of his
liberty for that purpose. Hockey AJ, in ostensibly deciding the matter on the basis of other considerations, took a firmly
pro-Constitution approach:
[16] Prior to the 2002 amendment, the State had to make do, in its endeavour to prove its case, w ithout the luxury of having the
accused w ho raised a defence of non-pathological incapacity referred for observation in terms of s 78(2). In S v Francis 1999 (1) SACR
650 (SCA), such defence w as raised and a psychiatrist sat through the trial, w hereafter he gave evidence on behalf of the State.
Schutz JA held, at 66b-c, that, in that case, being one of sane automatism, there w as no need for an expert to explain any actual
pathology.
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[17] The above are important factors w hich the Court has to take into account in exercising its discretion. So, too, in the present
matter, are the conditions at Valkenberg Psychiatric Hospital to w hich the accused w ill be subjected if he is referred for observation
on the terms as requested by the State.
[18] Professor Kaliski, w ho gave evidence on behalf of the State during the second application, acknow ledged that the conditions in
the w ard (w here the observations take place) are 'appalling and abject'. . . .
[20] The conditions that patients have to endure at night are inhumane. . . .
[22] Professor Kaliski agreed that these conditions are undignified and violate basic human rights of the patients.
[23] The main consideration in deciding this matter is w hether it w ould be in the interests of justice to order that the accused be
referred for observation in terms of s 78(2) for 30 days (including nights) as requested by the State. Interposed w ith this
consideration is the question w hether granting an order as requested by the State w ould be reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom (see s 36(1) of the Constitution). These issues should be
decided in the light of the appalling and inhumane conditions at Valkenberg. . . .
[25] In the present matter, we are not dealing with a sentenced prisoner. The accused is still to be tried on a charge of murder and is
presently on bail. He has a constitutional right to be presumed innocent (s 35(3)(h) of the Constitution), in addition to his right to human
dignity.
[26] No doubt, the granting of an order, as requested, w ould infringe the accused's rights to dignity and freedom. Such order, if
granted, w ould particularly infringe the accused's rights to be detained under conditions that are consistent w ith human dignity,
including adequate accommodation as afforded by s 35(2)(e) of the Constitution. These are fundamental and precious rights
protected by the Constitution. How ever, they do not fall under the category of non-derogable rights, and may indeed be limited in
terms of s 36 of the Constitution.
[27] Kriegler J, in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR
771), held at 90 (SACR) (670 (SA)) in para [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 w ording 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.'
[28] Section 7(1) of the Constitution describes the Bill of Rights (as contained in ch 2 thereof) as a cornerstone of democracy in South
Africa that enshrines the rights of all people and affirms the 'democratic values of human dignity, equality and freedom'.
[29] Another court has seen it fit to grant bail to the accused. In the circumstances of this matter, I see no justifiable reason to
reverse such order on the terms requested by the State, albeit for a limited period.
9.15 The relevance of a charge referred to in Schedule 1, 5 or 6 [115]

Page 160
Section 60 of the Act is interspersed with references to various schedules to the Act. Of these, the references to Schedules
1, 5 and 6 are of substantive importance. It should however be noted that Schedule 1 has relevance only as it is drawn into
the bail sphere by references in certain sections and in Schedule 5 and 6 of the Act: it is not a 'bail' schedule at all, and
there is no such thing as 'a Schedule 1 bail application'.
Section 60(4)(a) of the Act provides that the refusal to grant bail shall be in the interests of justice 'where there is the
likelihood that the accused, if he or she were released on bail, will . . . commit a Schedule 1 offence'. It is clear that the
legislature did not intend to deny bail where a risk existed of the accused committing minor offences while on bail: Schedule
1 may be said to contain the more serious common-law crimes such as treason, sedition, murder, rape, robbery, serious
assaults, etc. It should be noted, however, that Schedule 1 offences are not confined to those involving an element of
violence, but include housebreaking, theft, fraud, forgery, and so forth. Thus, where the accused's past record has
manifested a disposition for committing Schedule 1 offences, [116] or where there is evidence that he has previously
committed such an offence while released on bail [117] or that he intends committing such an offence, a court may be
justified in refusing bail.
In s 60(11)(a) it is provided that
[w ]here an accused is charged w ith an offence referred to in Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt w ith in accordance w ith the law , unless the accused . . . adduces evidence w hich satisfies the court
that exceptional circumstances exist w hich in the interests of justice permit his or her release.
As was seen above, the importance of this reference is that, where the accused is charged with a Schedule 6 offence, he will
bear the onus of proving the existence of exceptional circumstances that permit his release on bail. It may be stated that
Schedule 6 contains the most serious crimes of violence, to wit, planned or premeditated murder; the murder of a law
enforcement officer or of a likely material witness in respect of a Schedule 1 offence; murder which is committed in the
execution of a rape or robbery; murder committed in the execution of a common purpose; aggravated cases of rape and
robbery; etc.
Significantly, a charge will also be deemed to fall under Schedule 6 where the accused is charged with an offence referred
to in Schedule 5 and where he has previously been convicted of a Schedule 5 or Schedule 6 offence; or where the Schedule
5 offence with which he is charged was allegedly committed while he was released on bail in respect of a Schedule 5 or
Schedule 6 offence. Of particular interest with regard to this latter instance is the fact that, even where the accused is
charged with a Schedule 5 offence which was allegedly committed while awaiting trial in respect of a prior Schedule 5 or 6
offence, the charge will not be converted into a Schedule 6 offence unless the accused was on bail and not, for example,
where he was on warning. Furthermore, the conversion of a Schedule 5 offence into a Schedule 6 offence does not arise
Page 161
where the latest offence was allegedly committed while the accused was on bail in respect of any other offence: the prior
offence must be a Schedule 5 or 6 offence.
Section 60(1)(b) of the Act provides that
[w ]here an accused is charged w ith an offence referred to in Schedule 5 but not in Schedule 6, the court shall order that the accused
be detained in custody until he or she is dealt w ith in accordance w ith the law , unless the accused . . . adduces evidence w hich
satisfies the court that the interests of justice permit his or her release.
This provision is distinguishable from that in s 60(11)(a) of the Act in that, while a burden of proof is placed upon the
accused, he is not required to discharge that burden by proving the existence of exceptional circumstances. The particular
burden is incurred where the accused is charged with treason, murder, attempted murder involving grievous bodily harm,
rape, certain drug, arms and finance related offences, and indecent assault on young children. In addition, the burden
comes into play where the accused is charged with an offence referred to in Schedule 1 and has previously been convicted
of such an offence; or where the latest offence was allegedly committed while the accused was released on bail in respect of
a Schedule 1 offence. In these instances, the charge against the accused is elevated to a Schedule 5 offence.
In terms of s 60(11A)(a) and (c) the attorney-general 'may, irrespective of what charge is noted on the charge sheet, at
any time before such person pleads to the charge, issue a written confirmation to the effect that he or she intends to
charge the accused with an offence referred to in Schedule 5 or 6'; and such written confirmation 'shall, upon its mere
production . . . , be prima facie proof of the charge to be brought against that person'. The practical effect of this section is
dealt with below.
9.16 The relevance of the attorney-general's attitude

The attitude of the attorney-general in bail applications is a factor which will be given due consideration by the court. [118]
However, the attorney-general's opposition to bail in a given case is not conclusive or binding on the court, [119] and courts
should guard against the tendency [120] to regard the ipse dixit of the prosecutor (or even the investigating officer) [121] as
grounds for refusing bail. It has been held that, notwithstanding the respect which the opinion of the attorney-general
commands, a court may be in as good a position as he to assess the likelihood or otherwise that an accused person will
abscond. [122] However, the attorney-general has been given extraordinary powers by s 60(11A) of the
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Act, in terms of which a bail application will be conducted under Schedule 5 or 6, as the case may be, by virtue of a
certificate issued by him stating that the charge resorts under one or other of the schedules in question. Such a certificate
has prima facie force.
[1] See C h 2.
[2] Lobel v Attorney-General 1956 (1) PH H10 (T).
[3] The two considerations are, of course, not mutually exclusive.
[4] S v Patel 1970 (3) SA 565 (W) 568; S v Fourie 1973 (1) SA 100 (D) 101-2.
[5] Patel (above); S v Ho 1979 (3) SA 734 (W). In S v Fourie (above) Miller J declined, on the facts, to refuse bail on the ground that a risk of the
commission of further offences by the accused existed, but approved of the principle whereby bail may, in appropriate cases, be refused on that basis.
[6] S v Patel (above). See also S v Fourie (above).
[7] Contra Harcourt (ed) Swift's Law of Criminal Procedure (1969) 151; S v Shaw 1922 TPD 203; R v Kok 1927 NPD 267.
[8] S v Ho (above) 739.
[9] Lansdown & C ampbell South African Criminal Law and Procedure vol v (1982) 323.
[10] See ss 58, 60 of the Act.
[11] S v Nangutuuala 1973 (4) SA 640 (SWA).
[12] C f S v Fourie (above).
[13] 1998 (2) SAC R 721 (C ).
[14] R v Omar 1930 C PD 79.
[15] The expected punishment need not be imprisonment—Fry v Attorney-General, Transvaal 1954 (3) SA 794 (W). See also S v Budlender and
Another 1973 (1) SA 264 (C ) for a case where the accused faced imprisonment without the option of a fine.
[16] Liebenberg 10 C TR 442; Khan v Attorney-General 1909 C TR 228; Dracopoulos v Minister of Justice 1910 C TR 831; Alli Ahmed v Attorney-
General 1921 TPD 461; R v Kok (above); R v Perkins 1934 NPD 276; S v Kathrada 1961 (3) SA 593 (T); S v Mhlawli and Others 1963 (3) SA 795 (C ); S
v Price 1973 (2) PH H92 (C ); S v Nichas 1977 (1) SA 257 (C ).
[17] At 263.
[18] 1979 (3) SA 734 (W) 740.
[19] 1980 (4) SA 145 (D) 146.
[20] See, for example, R v Mtatsala 1948 (2) SA 585 (E); Leibman v Attorney-General 1950 (1) SA 607 (W); Du Toit v Adjunk-Prokureur-generaal,
OVS 1956 (1) PH H89 (O).
[21] C ontrast R v Mtatsala (above), which does not convince.
[22] S v Maharaj and Another 1976 (3) SA 205 (D).
[23] Ex parte Van Wyk 1933 (1) PH H63 (GW).
[24] R v Kok (above) 269-70; R v Fourie 1947 (2) SA 574 (O); S v Hartman 1968 (1) SA 278 (T); S v Lulane 1976 (2) SA 204 (N).
[25] 2002 (2) SAC R 550 (SC A) para [25]. The original text reads: '[Daar moet teen gewaak word] om van elke borgaansoek 'n uitgerekte verhoor
voor die strafverhoor te maak. . . . Moet, op die borgstadium, die beskuldigde viva voce-getuienis aflê wat deur viva voce weerleggende getuienis van
een of meer polisie-beamptes weerlê moet word? Dieselfde toneel sal hom, binne korter of langer tyd, voor die Verhoorhof afspeel. Kon dit ooit die
bedoeling van die wetgewer gewees het dat borgaansoeke 'n volle kleedrepetisie van die verhoor moet wees? Ek betwyfel dit ten sterkste.'
[26] (162/12) [2012] ZASC A 79 (30 May 2012).
[27] (162/12) [2012] ZASC A 79 (30 May 2012).
[28] S v Nichas (above) 263-4; S v Hudson (above) 147; S v De Abreu 1980 (4) SA 94 (W).
[29] R v Grigoriou 1953 (1) SA 479 (T); Price (above); Nichas (above) 263. See also Leibman v Attorney-General (above).
[30] Price (above); Hudson (above) 148. See also the nature of the onus in respect of peregrine.
[31] De Abreu (above).
[32] Swart 1923 NPD 133; Potgieter 1955 (1) PH H31 (O); S v Berg 1962 (4) SA 111 (O). The added relevance of previous convictions is, of course,
that they may reveal a propensity to commit certain crimes.
[33] R v Conradie 1907 TS 455; Gillespie 1935 EDL 490; C 1955 (1) PH H93 (C ); Du Toit v Adjunk-Prokureur-generaal, OVS (above); Groesbeeck
1969 (4) SA 455 (O); S v Hlongwa 1979 (4) SA 112 (D).
[34] The thorny issue of cancellation of bail and estreatment of bail money is discussed in C h 12.
[35] R v Conradie (above) 461.
[36] C ontrast R v Kok (above) 269-70; S v Shaban 1965 (4) SA 646 (W).
[37] Kok (above); Perkins (above); S v Williams 1981 (1) SA 1170 (ZA).
[38] C h 2.
[39] See also Grobler v Attorney-General 1915 TPD 9; S v Bennett 1976 (3) SA 652 (C ); S v Barber 1979 (4) SA 218 (D).
[40] S v Kathrada (above).
[41] S v Berg (above).
[42] S v Essack 1965 (2) SA 161 (D). Contra the unfortunate decision in S v Baker 1965 (1) SA 821 (W), in which the court's judgment may have
been influenced by the political nature of the case.
[43] S v Vermaas 1996 (1) SAC R 528 (T).
[44] S v Vankathathnam 1972 (2) PH H139 (N).
[45] S v Bennett 1976 (3) SA 652 (C ) 655. With regard to the rule of practice restricting interviews with state witnesses, see S v Hassim 1972 (1) SA
200 (N); Fairleigh 1986 DR 153. Since the advent of the C onstitution access to state witnesses for the purpose of interviewing them has been
considerably relaxed both by the courts and in terms of the professional ethics of the legal profession. See Shabalala v Attorney-General, Transvaal
1995 (2) SAC R 761 (C C ).
[46] 1933 TPD 405.
[47] 1937 EDL 231.
[48] 1979 (4) SA 112 (D) 113. See also Ex parte Chetty 1933 EDL 319; Lobel v Claassen 1956 (1) SA 531 (W).
[49] Hafferjee 1932 NPD 518; Ex parte Chetty (above); Gillespie 1935 EDL 490.
[50] S v Barber 1979 (4) SA 218 (D). But contrast Sandig v Attorney-General 1936 (1) PHH83 (T); and Maserow v Attorney-General 1941 WLD 43 47,
which, it is submitted, are clearly wrong in this respect.
[51] Ex parte Qutani 1946 EDL 173; S v Barber (above).
[52] S v Barber (above). See also R v Kok (above) 269.
[53] Above 655. See also R v Mtatsala 1948 (2) SA 585 (E).
[54] Harcourt (ed) 151.
[55] R v Fourie 1947 (2) SA 574 (O).
[56] Phasoane (above) (accused retained influence over his tribe); Ex parte Nkete (above) (accused was a feared presence in his community);
Gillham 1967 (2) PH H298 (D) and Barber (above) (accused was the witness's employer). But see R v Gcora 1943 EDL 74.
[57] Salzwedel 1933 (2) PH H187 (E); Phasoane (above); Schutte v Attorney-General 1941 (1) PH H82 (T); Ex parte Taljaard 1942 OPD 66; R v
Mbalele 1946 (1) PH H63 (E); Ex parte Qutani (above).
[58] Ntuli 1959 (2) PH H294 (N). C f the circumstances of Salzwedel (above).
[59] Gillham (above); Barber (above).
[60] R v Kok (above).
[61] C f Kaplan 1931 (1) PH H51 (T); Heller v Attorney-General 1932 C PD 102; R v Mbalele (above).
[62] See Hafferjee (above); Ex parte Taljaard (above); Naicker v Attorney-General 1962 (2) PH H190 (N); Mbele v Prokureur-generaal, Transvaal
1966 (2) PH H272 (T).
[63] Fry (above).
[64] R v Dockrat 1959 (3) SA 61 (D).
[65] C f Maharaj (above). See Fairleigh (above) 154.
[66] C f S v Casker 1971 (4) SA 504 (N).
[67] Above. See also Gade v S [2007] 3 All SA 43 (NC ) para [33]; Fairleigh (above) 154.
[68] 2003 (2) SAC R 5 (SC A) 12i-j.
[69] 1997 (1) SAC R 54 (W).
[70] Shaw (above); R v Kok (above); Mhlawli (above).
[71] S v Budlender (above); S v Russell 1978 (1) SA 223 (C ). See also S v Baker (above).
[72] 1985 (3) SA 587 (N); 1985 (4) SA 130 (N).
[73] (1992) 77 C C C (3d) 91 (SC C ) 107.
[74] See para 9.8.
[75] 1999 (2) SAC R 51 (C C ) at [52].
[76] Constitutional Criminal Procedure (1998) 144.
[77] C owling 1996 SACJ 50.
[78] 1999 (1) SAC R 100 (C ) 104.
[79] C f S v H 1999 (1) SAC R 72 (W).
[80] C f S v Mohammed 1999 (2) SAC R 507 (C ).
[81] 1999 (2) SAC R 51 (C C ).
[82] At para [57].
[83] See, for example, R v Perkins (above); S v Nichas (above); S v Hlongwa (above).
[84] Dinizulu 20 NLR 51; Dracopoulos v Minister of Justice (above); Ex parte Van Niekerk 1925 OPD 43; C 1955 (1) PH H53 (C ); S v Patel (above).
[85] See, generally, Anderson in Kaplan et al Comprehensive Textbook of Psychiatry (1980) 1519; Mathews & Albino 1966 SALJ 16; Fine 1984 SACC
156; Van der Berg 1985 SACC 252. C f Ex parte Van Niekerk (above).
[86] See, for example, S v Patel (above)—the accused was 89 years old!
[87] See, for example, ss 71 and 72(1)(b) of the Act.
[88] See also Budlender (above) 270.
[89] Ex parte Qutani (above) where the accused's race (black) operated in his favour.
[90] Steytler 1982 SACC 3; Fernandez 1982 SACC 72.
[91] Fernandez 1982 SACC 72 74.
[92] R v Louw 1918 C PD 358; Ex parte Taljaard 1942 OPD 66; S v Hlongwa (above).
[93] R v Louw (above); Harms v Attorney-General 1929 (2) PH H127 (N); R v Fourie 1948 (3) SA 548 (T); R v Grigoriou (above).
[94] Cornelissen v Attorney-General 19 C TR 210; Alexander 1920 NPD 33; Du Toit (above); S v Budlender (above) 269.
[95] S v Ho 1979 (3) SA 734 (W).
[96] R v Gcora (above).
[97] C f Alli Ahmed v Attorney-General 1921 TPD 587.
[98] 1999 (2) SAC R 51 (C C ) para [101].
[99] 1998 (2) SAC R 259 (C ).
[100] Steytler 143.
[101] See, for example, S v Acheson 1991 (2) SA 805 (Nm) 823.
[102] 1995 (1) SAC R 299 (T).
[103] 1996 (1) SAC R 212 (W).
[104] From Steytler 136.
[105] 1999 (2) SAC R 51 (C C ) at [38].
[106] At para [41].
[107] At paras [45], [46].
[108] At para [47].
[109] (1992) 77 C C C (3d) 91 (SC C ).
[110] At 103.
[111] See s 60(6)(a) of the Act.
[112] 2008 (2) SAC R 355 (C ). And cf S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SAC R 539 (C C ).
[113] Paras [63]-[65].
[114] 2005 (2) SAC R 402 (C ) paras [16]-[29].
[115] For a full discussion of the Schedules, see C h 7.
[116] Section 60(5)(e) of the Act.
[117] Section 60(5)(g) of the Act.
[118] R v Mtatsala (above); S v Essack 1965 (2) SA 161 (D); S v Bennett (above).
[119] R v Mtatsala (above) 592. See also Konig v Attorney-General 1915 TPD 221; R v Fourie 1947 (2) SA 574 (O); Leibman (above).
[120] As revealed in, for example, Vermooten 10 C TR 17; Konig v Attorney-General (above); Louw (above); S v Baker (above); Nichas (above).
[121] S v Joone 1973 (1) SA 841 (C ).
[122] S v Lulane 1976 (2) SA 204 (N).
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10
Bail conditions
10.1 Introduction
In s 59(1)(a) of the Act provision is made for the absolute condition that police bail may be given effect only upon payment
of the sum of money determined as bail, while a similar condition is contained in s 59A(1) in respect of bail granted by the
attorney-general or an authorised prosecutor, and in s 58 in connection with bail granted by the courts. It will be seen that
this absolute condition cannot stand alone, and that it is circumscribed by the unwritten requirement that the sum of money
determined as bail must be reasonable. Furthermore, the attorney-general or an authorised prosecutor, and a court, may
impose additional discretionary bail conditions. These are discussed below. Both the attorney-general or prosecutor and the
court have a fairly wide discretion to determine additional bail conditions that will ensure that the administration of justice is
not frustrated or jeopardised by the accused's release on bail. But there are also certain general principles that govern
conditions attached to release on bail: every bail condition should be reasonable, practically feasible, clear and neither contra
bonos mores nor ultra vires. It is sound policy, and indeed commensurate with a sound exercise of a presiding officer's
discretion, that appropriate bail conditions should always play a role in the adjudication process. Thus it was held in S v
Branco: [1]
A court should alw ays consider suitable conditions as an alternative to the denial of bail. Conversely, w here no consideration is given
to the application of suitable conditions as an alternative to incarceration, this may lead to a failure to exercise a proper discretion.
10.2 Absolute condition that accused posts bail or security

In s 58 of the Act it is clearly stated that the accused may be released on bail if the amount of money determined as bail has
been paid or a guarantee furnished. Section 69(1) stipulates that such money may be paid by third parties in cases of both
police bail and bail determined by a court, whereas s 60(13) permits the furnishing of guarantees in lieu of bail money in
cases of bail granted by a court but not by a police official. It is trite that payment of bail or furnishing security in lieu of bail
are absolute conditions serving as a prerequisite for the accused's release on bail. However, the legislature, no doubt well-
meaning, has sullied clearly established waters by introducing a mechanism whereby the accused may be released on bail
(sic) if it appears in circumscribed circumstances that he is
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unable to pay even a modest amount of bail. [2] The relevant provision, s 60(2B) of the Act, introduced in 2008, [3] reads as
follows:
(a) If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), and
if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability of
the accused to pay the sum of money being considered or any other appropriate sum.
(i) unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an amount of money
for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as provided for in
subsection (13)(b). (Emphasis added.)
Sloppy legislative drafting has created uncertainty by confusing the concepts of release on bail (the distinguishing feature of
which is the payment of bail money) and release on warning. [4] It is submitted, however, that true 'bail' retains the age-old
distinguishing feature of payment as an absolute condition. It will be seen that this absolute condition cannot stand alone,
and that it is circumscribed by the unwritten requirement that the sum of money determined as bail must be reasonable.
Furthermore, s 58 stipulates that the accused's release on bail is conditional upon him appearing 'at the place and on the
date and at the time appointed for his trial or to which the proceedings . . . are adjourned'.
10.3 The amount of bail: excessive bail not permitted [5]

It is a fundamental principle of bail that the accused is released upon payment of a fixed sum of money. [6] The
appropriateness of an amount will depend upon the circumstances of each case. The court is required to fix bail in a sum
which the accused will be able to afford, [7] but which will be sufficiently substantial to ensure that the accused will probably
prefer to stand trial rather than abscond and forfeit his money. [8] In assessing the accused's ability to afford bail it is
necessary for the court to inquire closely into his financial resources [9] and to hear evidence if such a course will facilitate its
decision. [10] The court need not fix bail in a sum which the accused has readily available, but must consider the capacity of
the accused to find the money. [11] In assessing the risk of the accused electing
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to abscond and estreat bail rather than standing trial, the court will be mindful of the gravity of the offence and the likely
sentence which the accused faces. [12]
Unlike the previous Act, [13] the Act contains no prohibition against a police official or court fixing bail in an excessive sum.
It is not clear why the former express prohibition has not been re-enacted, but it is submitted that its omission from the
Act must not be seen as an indication that the legislature has relinquished its former unequivocal stance. The principles
underlying the concept of bail militate against such an inference, [14] and it is submitted that it requires no statutory
prohibition for the fixing of excessive bail to be irregular. [15] (It is instructive that the Eighth Amendment to the
Constitution of the United States of America couches what has been held to be the right to apply for bail in terms as the
right not to be set excessive bail.) Thus it has been said that the amount of bail fixed must not be such as to create the
impression that the court achieved its purpose of refusing bail by setting bail in an excessive amount. [16] Similarly, bail
must not be set in an amount so inordinately high that the practical effect thereof is to render the accused's right to
freedom nugatory and to amount to a refusal of bail. [17]
10.4 Increase or reduction of amount of bail
Once bail has been fixed in a certain amount the state or the accused may apply [18] for an increase or a reduction of that
amount, irrespective of whether or not the accused has been released on bail. The right to apply for an increase of the
amount accrues to the state [19] by virtue of the provisions of s 63(1) of the Act. It is submitted that such an application will
be granted only if new factors have arisen since the amount of bail was originally fixed in terms of s 59 or s 60 of the
Act. [20] Thus the state's application in Swart [21] succeeded on account of the fact that the accused's criminal record had
become available since the first fixing. However, the mere fact that the state has made out a strong prima facie case
against the accused during the course of the trial does not justify the increase of the amount of bail at that stage. [22] It is
arguable that the state's application for increased bail might succeed if it is made before conviction, that is while the amount
originally fixed endures, but after all the evidence in the case has been received. The reason for this contention is that it will
at that stage usually be
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clear to both the court and the reasonably astute accused whether a conviction will follow—a factor which may increase the
risk of abscondment. [23]
There is no reason why the procedure laid down by s 63(1) of the Act should not be anticipated: the court fixing bail in
the first instance may stipulate that the amount be increased at a certain future date. This may be done in anticipation of an
increased risk arising in future, or simply in order to allow the accused a certain time to raise more money for bail. [24]
Similarly, if the risk of abscondment or interference with state witnesses is initially high but is expected to diminish in
future, there seems to be no bar to a two-stage fixing of bail: the initial high amount may be ordered to be reduced at a
certain future date. However, the accused's remedy for obtaining a reduction of the amount of bail is ordinarily by way of
application in terms of s 63(1) of the Act. [25] It is submitted that the state may also apply for a reduction of the accused's
bail. Such applications will be granted only in the light of changed circumstances or new factors arising. [26]
10.5 Court having jurisdiction to increase or reduce amount of bail

Section 63(1) of the Act stipulates that an application for the increase or reduction of the amount of bail must be made to
the court before which the charge against the accused is pending. If the charge is pending before a superior court, the
application must be made to such court, [27] but may be made to a judge of such court if the court is not in session. [28]
10.6 Securing accused's attendance at application for increase of amount of bail

Although s 63(1) is not couched in mandatory terms, it is desirable and certainly implicit in the wording of the section that
the accused should be present when the state makes application for the increase of the amount of bail. The accused must
naturally be given a chance to oppose the application, which 'may' be determined in his presence. In order to secure his
attendance the court may issue a warrant for his arrest. It is submitted that such procedure is undesirable and uncalled for.
There is no reason whatsoever why the accused should not be served with a notice advising him of the proposed date and
place of the application. Only once the accused has failed to respond to such notice and the amount of bail has been
increased in his absence should a warrant for his arrest be issued.
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10.7 Application for increase or reduction of amount of bail: procedure

Section 63(1) of the Act prescribes no procedure that must be followed in an application for the increase or reduction of the
amount of bail originally fixed. However, unlike the original bail application where the issues are often uncertain or initially ill-
defined, thus justifying a departure from the usual sequence of application procedure, an application under s 63(1) will
follow normal procedure applicable to application proceedings.
The proceedings where application is made for the increase or reduction of the amount of bail must be recorded in
full. [29]
10.8 Onus of proof in application for increase or reduction of amount of bail

In view of the fact that an application brought in terms of s 63(1) of the Act follows normal application procedure the onus
of proof follows the well-established rule that he who alleges must prove. [30] The erstwhile rule that he who alleges the
affirmative of an issue must prove the affirmative no longer obtains in South African law. [31] It is therefore submitted that
the state will carry both the onus of proof and the evidentiary burden whenever it seeks an increase of the amount of bail
originally fixed, and that the accused will likewise incur these burdens should he seek a reduction of that amount. [32]
10.9 Condition that accused stands trial

The condition that the accused must undertake to stand trial [33] may also be called a 'general' condition, for it will be
encountered in all bail conditions imposed in practice. Indeed, this general condition is specifically contemplated by s 58 of
the Act.
In order to be able to fulfil his undertaking to stand trial the accused will have to be informed of the date to which his trial
is being postponed, as well as the time and place at which he should report on the date so fixed. [34] It is essential that the
court ensures that the accused is accurately informed of such details and that he understands this paramount
condition. [35] Where the accused is unrepresented a prudent court will furnish him with a written summary of his bail
conditions, and specifically with the details of this general condition. As regards the place at which the accused is required to
report for trial, it must be borne in mind that in the larger centres such as Johannesburg, Durban, Pretoria,
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Wynberg and Cape Town it will be inadequate simply to inform the accused that he is required to appear, for example, in the
Johannesburg Magistrate's Court on a certain date. To avoid confusion and the risk of the accused's non-appearance the
individual court must be clearly identified. [36]
10.10 General condition that accused serves sentence
Where the accused is released on bail pending appeal or review, the effect thereof is that the operation of his sentence is
temporarily suspended. [37] However, in the event of the appeal or review application being unsuccessful, the accused will be
required to surrender himself in order to serve his sentence. [38] Indeed, s 307(3) of the Act makes this a peremptory
condition of such bail. [39]
10.11 Specific conditions: general introduction

Section 62 of the Act makes provision for conditions to be added to the peremptory or absolute conditions discussed
above. However, the wording of the section creates certain difficulties. First, the section stipulates that such conditions may
be added 'on application by the prosecutor'. A literal interpretation leads to the conclusion that the court may not mero
motu impose specific conditions. This prompts one to ask: Why on earth not? For a start, the overall duty to safeguard the
administration of justice by refusing or granting bail vests in the court and not in the prosecutor. For that reason the court
may refuse bail even if the prosecutor does not oppose the application. [40] For that reason, too, the court is required to fix
bail in an amount that is likely to induce the accused to stand trial, [41] regardless of the amount of bail suggested by the
state. It follows, then, that the court must have the power to add conditions if it becomes aware of any risk that the
accused may jeopardise the administration of justice—irrespective of whether or not the prosecutor applies for such
conditions to be added. Furthermore, the former Act [42] prescribed that 'the court may further add . . . any condition
which it may deem necessary or advisable in the interests of justice. . . .' [43] No apparent reason suggests itself as to why
this power has been removed from the courts and made subject to the state's intervention by s 62 of the Act.
Secondly, the section seems to be applicable only where bail has already been granted. It reads:
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Any court before w hich a charge is pending in respect of which bail has been granted, may at any stage, w hether the bail was granted
by that court or any other court . . . [add further conditions]. [44]
Does this mean that specific bail conditions may not be added at the initial bail application? [45] And does it mean that the
court may grant bail coupled with the absolute or general conditions only and may not make the accused's release subject
to certain additional safeguards unless the prosecutor applies for these?
Thirdly, if specific conditions may be added only after bail has been granted, it would appear that s 63(1) of the Act,
which allows for amendments to or supplementation of bail conditions, is superfluous.
10.12 The words 'bail has been granted' in s 62

It is submitted that the apparent requirement in s 62 of the Act that specific conditions may be imposed only once bail has
already been granted [46] does not preclude the imposition of such conditions at the initial bail application. The wording of s
62 itself allows for such conditions to be added 'at any stage' after bail has been granted, and there seems to be no reason
why specific conditions should not be added immediately following upon the grant of bail. Indeed, that is the normal practice
of our courts. [47] This practice seems to be well founded if regard is had to s 63(1) of the Act.
10.13 The words 'on application by the prosecutor' in s 62

Aliteral interpretation of s 62 of the Act leads to the conclusion that a court may attach specific bail conditions to the
accused's release only if the prosecutor asks for such conditions. Although this interpretation has not been the subject of a
High Court decision, counsel in Russell [48] suggested that a prerequisite for any specific conditions being added by a court
was a prior application by the prosecutor; and the contention was not rejected by the court. [49] However, it is submitted
for the following reasons that the literal interpretation of this phrase leads to a manifest absurdity, [50] and should therefore
not be followed. Postulate a situation where the accused applies for bail and the magistrate is disposed towards granting
the application, but has certain reservations regarding, say, the accused's intentions concerning communication with
potential state witnesses
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or even regarding possible abscondment by the accused. The magistrate considers that a substantial amount of bail will not
adequately safeguard the interests of justice, but that, coupled with specific conditions, it will. Should he grant bail and the
prosecutor refrain from requesting such conditions, the interests of justice will be at risk; therefore the magistrate, with the
interests of justice at heart, must refuse bail even though he wished to grant it and even though the prosecutor might well
have requested specific conditions upon bail being granted! Alternatively, he must grant bail and take the risk that the
prosecutor might not request specific conditions.
It is submitted that the legislature could not possibly have intended such absurd consequences which, in fact, amount to
a failure of justice. It is further submitted that s 62 was drafted into the Act with a purpose in mind which is no different
from that envisaged by s 93(3) and s 95(3) of the former Act, [51] namely that the court should have the power to add bail
conditions which it deems 'necessary or advisable in the interests of justice'.
In practice the courts have disregarded the phrase in question on the assumption that it has been included in s 62 per
incuriam, and have mero motu added specific conditions to the accused's release on bail.
10.14 Specific condition that accused should report—s 62(a)

Section 62(a) of the Act permits the addition of a specific bail condition 'with regard to the reporting in person by the
accused at any specified time and place to any specified person or authority'. The condition most usually imposed [52] is that
the accused shall report to a particular police station at specific times, which may vary according to the circumstances. In
most cases it will be acceptable for the accused to report once a week; on the other hand, in 'high-risk' cases the accused
may be required to report as often as twice daily. The frequency with which an accused person is required to report must
however not be oppressive or punitive. In formulating such a condition a time and place should be stipulated which causes
the accused a minimum of inconvenience or disruption. If it is accepted by the court that the accused's release on bail does
not involve a risk of abscondment, such a condition should not be imposed, for its sole purpose is to limit the accused's
abscondment opportunities. [53]
In practice the clerk of the court which grants bail transmits such a bail condition to the police station concerned, where
[54] [55]
the condition is entered in a register [54] which the accused is required to sign each time he reports. [55]
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10.15 Specific condition that accused may not visit any place—s 62(b)
In terms of s 62(b) of the Act a specific bail condition may be that the accused is forbidden to go to any specified place. The
purpose of such a condition is usually to prevent interference with state witnesses, [56] but may be aimed at preventing the
commission of offences or at maintaining law and order. [57] In Salzwedel [58] the accused was forbidden residence at a
particular farm, while the condition was couched in negative terms in S v Michau, [59] stipulating that he could not live
elsewhere than at a certain place. In Ex parte Kadalie [60] the accused was forbidden attendance of public meetings, which
seems to indicate an intention other than preventing communication with state witnesses.
Where the prohibition of entry to a public place forms part of the accused's bail conditions, and such prohibition could
severely damage the goodwill of that place, the condition should be imposed only with the greatest caution [61] and, if
possible, after hearing the third party concerned. [62]
10.16 Specific condition prohibiting communication with state witnesses—s 62(c)

Section 62(c) of the Act provides for the imposition of a specific bail condition 'with regard to the prohibition of or control
over communication by the accused with witnesses for the prosecution'. It is clear from the wording of s 62(c) that a
condition may be imposed which either totally prohibits communication with state witnesses, or which permits such
communication but imposes certain controls over it. The purpose of the section is to prevent the accused from influencing
state witnesses [63] (or, indeed, potential state witnesses), [64] and such condition should therefore be added only if there is
evidence that the accused has in fact interfered, or from which it can reasonably be inferred that he will [65] interfere, with
state witnesses. [66]
10.17 Specific condition regarding domicilium citandi—s 62(d)

Section 62(d) of the Act contains the somewhat incongruously juxtaposed provision that a specific condition may be added
'with regard to the place at which any document may be served on [the accused] under this Act'. [67] The
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provision is strangely juxtaposed for, unlike the other provisions of s 62, it is not directed at preventing the accused's flight
or interference with the administration of justice. The intention of the legislature has apparently been to facilitate the service
of court process upon the accused by excluding the need for personal service.
10.18 Residual specific conditions—s 62(e)

Although s 62 of the Act purports to create a numerus clausus of specific conditions which a court may couple to the
accused's release on bail, s 62(e) is an extremely wide residual section which in fact allows for the imposition of any
condition 'which, in the opinion of the court, will ensure that the proper administration of justice is not placed in jeopardy
by the release of the accused'. [68] The section prescribes no other object, nor does it stipulate any criterion for conditions
added under s 62(e). It may be argued that any conditions added under s 62(e) must comply with the general aim of the
bail sections, namely to ensure that the accused stands trial and to protect state witnesses from undue influence by the
accused. However, the administration of justice will also be safeguarded by a condition which, for instance, restrains the
accused from committing an offence. The Bill of Rights sets reasonableness as a requirement of conditions, including those
imposed under s 62(e). [69] It must be observed that all bail conditions, of whatsoever content, must be reasonable, as will
appear below.
The following are examples of specific bail conditions imposed in terms of this residual section. [70] The section is most
frequently employed to compel the surrender of the accused's passport [71] and to bar him from obtaining another whilst on
bail. [72] In S v Ramgobin (2) [73] the accused were also restrained from leaving their homes between 9 pm and 6 am
without written permission of the investigating officer or their magisterial district without written permission of the attorney-
general or investigating officer. In S v De Abreu [74] the accused were forbidden to leave their magisterial district without 24
hours' prior notice to the commanding officer of the local police station and his written permission on such conditions as he
thought fit. In Ramgobin (2) [75] the accused were also ordered to refrain from taking part in the activities of certain
specified organisations or attending, convening or addressing a gathering held in
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collaboration with certain specified organisations. In a number of cases bail was made conditional upon the accused taking
up residence at a particular place. [76]
A condition imposed under s 62(e) and which is too wide in its scope or unreasonably inhibiting of the accused's freedom
of existence will be invalid. Thus, in R v Conradie [77] a condition that bail will be estreated should the accused commit
suicide was held to be too wide. However, a condition that the accused does not attempt to commit suicide may be good in
view of the wide ambit of s 62(e), [78] particularly if it is borne in mind that bail may be refused upon the reasonable
apprehension that the accused may commit suicide. [79]
In addition to the scope created by s 62(e) for the imposition of residual specific conditions, s 60(12) provides that 'the
court may make the release of an accused subject to conditions which, in the court's opinion, are in the interests of justice'.
This provision is nothing more than a repetition of s 62(e), with the qualification that—in contradistinction to s 62(e)—
conditions may be imposed in terms of s 60(12) without the prosecutor having made application for such conditions. [80]
10.19 Specific condition of 'house arrest'—s 62(f)

It is apparent from the wording of s 62 of the Act, as also discussed in the preceding paragraphs, that no statutory
provision is made for the limitation of the accused's freedom of movement while on bail, save for s 62(b), which reads that
the accused may be forbidden to go to any particular place. This notwithstanding, it has in recent years become a common
practice for the courts to impose a bail condition that effectively amounts to 'house arrest' in an attempt to give content to
the accused's right to pre-trial freedom while simultaneously safeguarding the interests of justice. Thus, in borderline cases,
where a court is not satisfied that even a very high amount of bail will safeguard the interests of justice, it may seek to
restrict the accused's opportunity to abscond or otherwise jeopardise the interests of justice, by confining him to his place
of residence—usually during those hours when the accused may reasonably be expected to have returned home from his
workplace.
In S v Acheson 824B-D [81] Mahomed AJ, for instance, imposed the following bail conditions on a foreign national then
resident in Namibia:
(c) the accused shall refrain from leaving his place of residence at 7 Love Street, W indhoek, w ithout the w ritten consent of the
investigating officer, Colonel Smit, or his duly
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authorised delegate, save for the purposes of discharging his duties as an employee of the Windhoek Observer, and for the
purposes of reporting to the police station in accordance w ith the conditions of his bail.
(d) the Appellant [sic] shall follow the most direct convenient and accessible route in order to travel to and from his place of
residence and employment for the purposes of discharging his duties as an employee and he shall not, in the discharge of his
duties as an employee, leave the business premises of his employer (save for the purposes of reporting to the police station in
terms of his conditions of bail) unless he obtains the permission of Colonel Smit or his duly authorised delegate in the Namibian
Police. Such permission shall not be unreasonably w ithheld.
It is submitted that there can be no reason why a condition of 'house arrest' may not be imposed in terms of s 62(e) of the
Act. However, the inclusion by amendment of s 62(f) has pointedly directed the courts' attention to the eminently pragmatic
condition of house arrest; after all, release on stringent conditions such as those in S v Acheson's case are far preferable in
a democratic society to the refusal of bail.
In practice, when evidence has been led to establish that the accused, objectively, may be safely released on condition of
house arrest, the involvement of a correctional officer is called for to confirm the authorities' ability to monitor the accused
and to construct a regimen of sub-conditions to regulate the accused's movements during specified hours. Thus, for
instance, it is the accused's constitutional right to work or look for work during the day, to attend church, to visit the
doctor, etc. These rights are generally observed when the extent of actual house arrest is calculated, but they are ultimately
made subject to the interests of justice. It may therefore be possible, in extreme cases, that the accused be confined to his
residence 24 hours per day. Even though such a situation would be inherently punitive, it is likely to be preferable to
incarceration while awaiting trial.
10.20 Conditions must be clear

In Ex parte Huysamen [82] it was held that a condition of bail requiring the accused to remain under police supervision was
void for vagueness. [83] And in S v Budlender and Another [84] it was reiterated that bail conditions have to be clear and
unambiguous in order to be valid. Vagueness will lead to nullification of the particular condition. [85] As was pointed out
above, a condition that the accused may not 'communicate with state witnesses' is surely void for vagueness, for it leaves
the accused to speculate who the state witnesses may be—moreover on pain of having his bail withdrawn if he happens to
miscalculate and communicate with even a formal witness who happens to feature in the police docket, to whose contents
the accused has not been privy. It is imperative that the condition in question should be given meaning by specifying the
names of witnesses with whom the accused may not communicate.
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Another suspect condition routinely imposed is that the accused must 'avoid the area where the complainant lives' or
even 'the complainant's relatives'. Again, this is incorrigibly vague, and would have to be given meaning if the area
concerned were to be circumscribed, and the relatives named.
10.21 Conditions must be intra vires

Conditions of bail which fall outside the parameters of what is permitted by law are ultra vires and therefore invalid. What is
permitted by law must be gleaned from the provisions of s 62 of the Act. Section 62(a)-(c) has to do with conditions aimed
at securing the accused's attendance at his trial and preventing the undue influencing of state witnesses. Section 62(d)
concerns the service of process on the accused; and s 62(e) seeks to protect the administration of justice. It is submitted
that s 62(d) and especially s 62(e) widen the scope of permissible conditions far beyond the aims of s 62(a)-(c), [86] and
that a wide variety of conditions may be imposed in terms of s 62.
The effect of an ultra vires bail condition may be nullified by a superior court and substituted by its own condition. In
Rolobile [87] it was held that the entire bail order is tainted by an ultra vires condition and may be cancelled and substituted
by a superior court; and in Smith [88] it was held that an ultra vires condition was merely to be disregarded while the
remainder of the bail order remained intact. The latter approach is the more acceptable one.
10.22 Conditions must be capable of implementation and control

Bail conditions that are so impracticable that their observation cannot be made subject to the control or scrutiny of the
authorities are undesirable and may be invalid. [89] Thus, a condition that the accused on bail remains under police
supervision has been held to be invalid. [90] A similar criticism may be levelled at a condition that the accused must not
attempt to commit suicide. [91]
10.23 Conditions must be necessary and reasonable

In seeking to safeguard the administration of justice a court should not destroy the fabric of the accused's life by imposing
unnecessarily onerous bail conditions. Where such conditions are unnecessary or unreasonable they will be invalid. Thus, in
S v Russell [92] a bail condition prohibiting an Anglican priest from entering certain squatter areas under his diocese was set
aside by the
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Supreme Court. So, too, in S v Budlender and Another, [93] a condition that the accused not act unlawfully was held to be
unnecessary, as it was already covered by the law of the land and thus constituted 'an unnecessary curtailment of or threat
to the freedom' of the accused. [94] It is submitted that a condition that the accused does not communicate with his co-
accused will usually be undesirable and unreasonable, ultra vires and possibly contra bonos mores, for it may seriously
hamper the accused's legitimate preparation of his defence. [95]
10.24 Conditions must not be contra bonos mores

Acondition that enjoins the accused to do something or prohibits him from performing certain acts may be invalid if judged
to be contrary to good mores. Generally a condition that prohibits communication between spouses will be contra bonos
mores; but in De Jager v Attorney-General, Natal [96] it was held that the condition was not unacceptable where the
accused's wife was the complainant in an attempted murder case against the accused.
10.25 Amendment or supplementation of bail conditions

Just as the amount of bail originally fixed may upon the application of the state or the accused be increased or reduced, [97]
the conditions imposed under s 60 or s 62 of the Act may be amended or supplemented. [98] The questions of jurisdiction,
procedure, onus and attendance at the application by the accused are discussed elsewhere. Whereas previously only
conditions 'imposed under s 62' could be amended or supplemented, the Act now allows for the amendment or
supplementation of any condition 'imposed under section 60 or 62'. It is submitted that the requested amendment or
supplementation of conditions will be allowed only where circumstances have changed or new factors have come to light and
are placed before the court. Such new factors arose in unusual circumstances in S v Savoi, [99] where the accused had been
on bail awaiting trial on serious charges and had been permitted, in terms of his bail conditions, to travel abroad on
business, subject to ad hoc approval by the police and prosecuting authorities. Requests for such approval, however, were
met with inordinate delays pending ostensible 'investigations' into the risk involved in
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each such envisaged trip abroad. This attitude on the part of the authorities thwarted the accused's business plans, and
were described by the SCA as amounting to an 'abuse of process', regardless of whether or not it was prompted by good
intentions. Accordingly, amendment of the bail conditions so as to avoid a repetition of the delays was endorsed by the
court. The elaborate judgment is thus accurately captured by the headnote:
Taking all the factors into consideration, the court w as satisfied that the interests of justice required changes to the conditions of bail.
The order made w ould better honour the spirit of the original grant of bail, w ithout prejudicing the state. Should the respondent have
reason to fear a breach of the terms of bail, it w ould have ample time to pre-empt any planned overseas travel by the appellant. In
that case the onus rested upon it to apply for an amendment of the terms. [100]
Application proceedings in respect of the amendment or supplementation of bail conditions must be recorded in full. [101]
10.26 Breach of conditions a punishable offence

Until the amendment of the Act in 1995 [102] the anomalous position existed where an accused person who had been
released on warning and who failed to heed the warning, would be guilty of a criminal offence and liable to be sentenced for
his failure, [103] whereas the accused who had been released on bail and who breached his bail conditions would not be
subject to punishment. The position has now been regularised by the introduction into the Act of s 67A. [104] An accused
person who has been released on bail and who fails to appear or to comply with his bail conditions shall now be guilty of an
offence and liable to a fine or imprisonment.
It has been held [105] that the accused's failure to appear or to comply with his bail conditions should not, for the purposes
of s 67A of the Act, be enquired into summarily, but that the enquiry should proceed on the basis of a charge sheet and
separate prosecution. This dictum was followed in S v Theko [106] where it was moreover held that s 170 of the Act [107]
was not the appropriate vehicle for
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dealing with the failure of an accused on bail to appear, and confirmed that the process envisaged by s 67A was to be
observed. It follows from such process that the state will carry the burden of proving the elements of the offence, including
the absence of good cause. Moreover, such proof will be proof beyond a reasonable doubt.
It should be noted that the section applies only to conditions imposed 'by the court', and the accused will therefore not be
liable for punishment in terms of the section if he should be in breach of conditions imposed extra-curially.
[1] 2002 (1) SAC R 531 (W).
[2] See s 60(2B) of the Act.
[3] By Act 66 of 2008, s 9(a).
[5] See, generally, S v Budlender and Another 1973 (1) SA 264 (C ) 266.
[6] See ss 58, 59(1)(a) and 60(1) of the Act. In certain cases guarantees may be furnished in lieu of money—see s 60(13).
[8] Lansdown & C ampbell 325.
[9] S v Mohamed 1977 (2) SA 531 (A). See also s 60(2B) of the Act and para 10.1 above.
[10] S v Ho 1979 (3) SA 734 (W).
[11] S v Visser 1975 (2) SA 342 (C ). See also s 60(2B)(a)(ii) of the Act: if the court's inquiry reveals that the accused is 'able to pay a sum of
money, the court must consider setting conditions for the release of the accused on bail and a sum of money which is appropriate in the
circumstances'.
[12] C f R v Du Plessis 1957 (4) SA 463 (W); R v Vermeulen 1958 (2) SA 326 (T).
[13] Act 56 of 1955, s 96.
[14] See the remarks made with regard to excessive bail in S v Mohamed (above) 544.
[15] C f Lansdown & C ampbell 325. See also s 35(1)(f) of the Bill of Rights, which requires bail conditions to be 'reasonable'.
[16] R v Conradie 1907 TS 455; S v Mohamed (above).
[17] R v Conradie (above); R v Vermeulen 1958 (2) SA 326 (T); Lansdown & C ampbell 326.
[19] It is inconceivable that any accused who is fit to stand trial would apply for an increase in the amount of bail.
[20] Mngemane v Attorney-General, Transvaal 1958 (2) SA 84 (W).
[21] 1923 NPD 133.
[22] January 1978 (2) PH H243 (E).
[23] In such cases the risk of abscondment increases as much with the conclusive evidence on record as it does with the pronouncement of a
conviction. C f S v Ho (above).
[24] C f R v Milne and Erleigh (4) 1950 (4) SA 601 (W).
[25] And, of course, by way of appeal under s 65 of the Act—see Gericke 1913 EDL 65; Ex parte Rampi 1933 GWL 27.
[26] Riddoch v Attorney-General, Transvaal 1965 (1) SA 817 (W).
[30] D 22.3.2. See also Pillay v Krishna 1946 AD 946 951; Ndlovu 1945 AD 369 381.
[31] Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A) 474; Van der Berg 1984 SACC 275 276.
[32] Potgieter 1955 (1) PH H31 (O); Weil (1885) 1 G 39.
[33] Sometimes referred to as an 'absolute' condition.
[35] C f Ferreira Strafproses in die Laer Howe (1979) 201.
[36] C f S v Casker 1971 (4) SA 504 (N) 512. The confusion will be compounded and more difficult to resolve where the courts are spread over
numerous buildings occupying an entire lane, as was the case in Durban until fairly recently.
[37] Sections 307-309, 321 of the Act.
[38] Sections 307(3), 309(4), 321(2) of the Act.
[39] See also Knight v Van Tonder 1962 (3) SA 719 (R); C h 14.
[40] C f S v Kramer 1983 (2) PH H120 (A).
[41] See para 10.4.
[42] Act 56 of 1955.
[43] Act 56 of 1955, ss 93(3), 95(3). Emphasis added.
[45] In S v Cronjé 1983 (3) SA 739 (W) 742 it was acknowledged that a literal interpretation of s 62 leads to that conclusion.
[46] See S v Cronjé (above) 742.
[47] See also Ferreira (above) 202.
[48] 1978 (1) SA 223 (C ).
[49] S v Russell 1978 (1) SA 223 (C ) 225. See also Ferreira 202.
[50] C f Volschenk v Volschenk 1946 TPD 486 487-8:
'If . . . a rigid grammatical construction . . . leads to a result which is manifestly absurd, unjust, unreasonable, inconsistent with other provisions, or
repugnant to the general object . . . of the statute, the court will be justified in departing from the literal sense . . .'.
See also Venter 1907 TS 910. The prosecutor's involvement also clashes with s 62(e) of the Act.
[51] Act 56 of 1955.
[52] Harcourt (ed) Swift's Law of Criminal Procedure (1969) 158.
[53] See Mngemane v Attorney-General, Transvaal (above); S v Casker (above); S v Budlender and Another 1973 (1) SA 264 (C ) 270; S v Bennett
1976 (3) SA 652 (C ). See the criticism by Van Dam 1977 Die Landdros 93.
[54] See S v Casker 506; Van Dam 93.
[55] See Van Dam 93.
[56] S v Russell (above); Lansdown & C ampbell 335.
[57] In fact, s 62(c) of the Act is more specifically directed at safeguarding the integrity of state witnesses.
[58] 1934 EDL 10.
[59] 10 C TR 45.
[60] 1930 (1) PH H32 (E). C f S v Budlender (above).
[61] Harcourt (ed) Swift's Law of Criminal Procedure 158.
[62] Murdock v Ellis 1956 (1) SA 528 (N).
[63] Harcourt 158.
[64] R v Dockrat 1959 (3) SA 61 (D). See also Act 32 of 1944, s 87; S v Casker (above).
[65] S v Bennett (above).
[66] Hafferjee 1932 NPD 518; Gillespie 1960 (1) PH H56 (W).
[67] No similar provision was contained in the former Act.
[69] Section 35(1)(f).
[70] Or its equivalent in legislation of the past.
[71] Chislett v Attorney-General, Natal 1966 (2) PH H300 (N); S v Bennett (above); S v Mohamed (above); S v De Abreu 1980 (4) SA 94 (W); S v
Ramgobin (2) 1985 (4) SA 130 (N).
[72] S v De Abreu (above) 101.
[73] Above, 132.
[74] At 101.
[75] At 132.
[76] S v Michau 10 C TR 45; Du Toit v Adjunk-Prokureur-generaal, OVS 1956 (1) PH H89 (O); Mngemane v Attorney-General, Transvaal (above).
[77] 1907 TS 455.
[78] Harcourt 159.
[79] C 1955 (1) PH H93 (C ). And cf S v Petersen 2008 (2) SAC R 355 (C ), although not extensively dealing with one of the main contentions of the
accused's initial bail applications, namely that she should be released on bail as her mental state was such that she constituted a suicide risk—
manifestly a consideration militating against release on bail.
[80] See, however, the discussion of the words 'on application by the prosecutor' in para 10.13.
[81] 1991 (2) SA 805 (Nm) 824B-D.
[82] 19 SC 393.
[83] Also because of the impracticability of implementing the condition.
[84] 1973 (1) SA 264 (C ) 271.
[85] See, for example, S v Russell (above) 226.
[86] See also Rolobile 1913 EDL 282; Kader v Attorney-General 1946 C PD 838; Smith 1947 (1) PH H9 (C ); Knight v Van Tonder 1962 (3) SA 719 (R).
[87] Above.
[88] Above.
[89] R v Fourie 1947 (2) SA 574 (O).
[90] Ex parte Huysamen 19 SC 393.
[91] C f C 1955 (1) PH H93 (C ); R v Conradie (above).
[92] 1978 (1) SA 223 (C ).
[93] 1973 (1) SA 264 (C ) 271.
[94] See also Shaw 1922 TPD 210; R v Kok 1927 NPD 267; Ex parte Kadalie 1930 (1) PH H32 (E).
[95] See Chislett v Attorney-General, Natal (above); S v Bennett (above); S v Maharaj and Another 1976 (3) SA 205 (D).
[96] 1967 (4) SA 143 (D).
[97] Section 63(1) of the Act, which reads as follows:
'Any court before which a charge is pending in respect of which bail has been granted may, upon the application of the prosecutor or the accused,
increase or reduce the amount of bail determined under section 59 or 60 or amend or supplement any condition imposed under section 60 or 62,
whether imposed by that court or any other court, and may, where the application is made by the prosecutor and the accused is not present when
the application is made, issue a warrant for the arrest of the accused and, when the accused is present in court, determine the application.'
[99] 2012 (1) SAC R 438 (SC A).
[100] See para [48] of the judgment.
[102] By Act 75 of 1995.
[104] Section 67A of the Act, which reads as follows:
'Any person who has been released on bail and who fails without good cause to appear on the date and at the place determined for his or her
appearance, or to remain in attendance until the proceedings in which he or she must appear have been disposed of, or who fails without good cause
to comply with a condition of bail imposed by the court in terms of section 60 or 62, including an amendment or supplementation thereof in terms of
section 63, shall be guilty of an offence and shall on conviction be liable to a fine or to imprisonment not exceeding one year.'
[105] In S v Mabuza 1996 (2) SAC R 239 (T).
[106] 2010 (2) SAC R 339 (GNP).
[107] Section 170(1) of the Act provides for the imposition of a punishment upon an accused who is neither in custody, nor on bail, and fails to
appear at court—see Swartbooi 1991 (2) SAC R 54 (Nm); Ndwayana 1983 (1) PH H93 (E). Also compare the position relating to failure to appear on
summons (s 55(3) of the Act) and failure to appear on warning (s 72(4) of the Act).
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11
Posting bail or security
11.1 Payment of cash bail

Before an accused person who has been granted bail may be released, the amount of bail fixed by the court and intended
as an indemnity in favour of the state in the event of the accused absconding, must be either paid in cash [1] or guaranteed
by the accused or by a surety. [2] Cash bail may be posted by the accused or, as will be seen, by a third party for the
accused's benefit. [3]
11.2 Payment by the accused

The accused is the main actor in the bail process. The whole system revolves around his release from custody upon
monetary security furnished for indemnification of the state in the event of the accused breaching his obligations. It is the
accused's future court attendance that the process seeks to ensure. Plainly, the primary figure to whom the system turns
for payment of cash bail is the accused. In ss 59, 59A and 60 of the Act the legislature requires the accused specifically to
pay the amount of bail as a precondition for his release. In s 60 it is stated that the accused may furnish guarantees that he
will pay the amount of bail to the state if he should be in breach of his obligations in terms of the bail contract. Where the
accused does not pay bail prior to his release, he signs a bail bond in which he undertakes to indemnify the state by
forfeiting the bail money if he fails to stand his trial. He is also issued with a bail receipt. Payment is made at the police
station where the accused is granted bail by a police official pursuant to the provisions of s 59(1) of the Act; and at the
accused's place of detention where bail is granted by the attorney-general or authorised prosecutor in terms of s 59A(3)(a).
In the case of bail granted by the court, payment is made to the clerk of the court or registrar. The accused may also pay
bail to a member of the prison service at the prison where he is in custody. He may, however, arrange for payment of cash
bail by a third party, for his benefit.
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11.3 Payment by third party

At common law the payment of a person's debt by another is a common occurrence which is freely allowed by the law. [4]
Similarly, the law allows the performance of non-pecuniary obligations by persons other than the parties to the contract. [5]
The reason for the lawful fulfilment of contractual obligations by non-contracting third parties is that a creditor is not (save
in exceptional cases where the contract specifies otherwise) concerned with the persona of those obligated to him. Rather,
his concern is with the due fulfilment of the obligations arising from the contract. The same considerations obtain in the law
relating to bail. Thus, it has been enacted in s 69(1) of the Act that the provisions of ss 59 and 60, which govern the grant
of bail to the accused, shall be no bar to the payment of the accused's bail by a third party, for his benefit. In view of the
common-law position, the contents of s 69(1) of the Act are somewhat curious. However, the wording of ss 59 and 60
creates the impression that the accused only could post bail, and the apparent superfluity of s 69(1) therefore appears to
be justified. [6]
Despite the fact that the actual deposit is to be made by a third party, the accused nevertheless remains the contracting
party, and the obligation to indemnify the state remains his. [7] The position is distinguishable from common law in that the
third party cannot pay the bail (and thus perform part of the accused's obligation) secretly, or without the accused's
consent, for the accused's intervention as signatory of the bail contract is essential. One is not concerned here with a
contract of suretyship, but with a simple situation where a third party deposits the bail money and suffers the loss
occasioned by forfeiture if the accused fails to stand trial.
11.4 Receivers of the bail money

If bail is granted in terms of s 60(1), the accused should deposit the sum of money with the clerk of the court or the
registrar of the High Court, as the case may be. [8] The sum of money determined by the court may also be deposited with
a member of the prisons service at the prison where the accused is in custody, or with any police official at the place where
the accused is in custody. [9] Bail granted by the police in terms of s 59 may only be deposited at a police
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station, [10] while bail granted in terms of s 59A may be paid at the accused's place of detention. [11]
11.5 Refund of cash bail

If the accused turns up to stand trial or is discharged from the bail contract on some other ground [12] the bail money will
be returned to the depositor, whether it be the accused or a third party. This provision, contained in s 69(2) of the Act, is
mandatory, and is not affected by the fact that the money may have been ceded in full or in part to another person by the
accused or third party concerned. [13] It has been common practice of long standing for attorneys to obtain cession of right
under the bail bonds of their clients as security for their fees. [14] Upon conclusion of the trial the attorney would simply
produce the bail receipt and receive the money refunded. This practice, long undesirable, has now been forbidden by the
Act, [15] and bail bonds have lost 'the convenience of negotiable instruments'. [16]
Bail may also be refunded to the depositor, whether it be the accused or a third party, if the accused applies in terms of
s 68A for cancellation of his bail. This may, however, only be done where the accused is in custody on another charge or is
serving a sentence.
11.6 Guarantees in lieu of money

The accused may be permitted to furnish a guarantee for the amount of bail set by the attorney-general or authorised
prosecutor and by the court. [17] The effect of such permission is that the accused is placed in a position where he
undertakes to pay and forfeit to the state the amount of bail set by the attorney-general or prosecutor, or by the court, in
circumstances where the same amount of cash would have been forfeited. [18] The amount concerned is that fixed by the
court in granting bail [19] or reduced or increased in a subsequent application. [20] Although, before the amendment of s 60
of the Act in 1995, the furnishing of a
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guarantee in lieu of cash could only be permitted 'on good cause shown', and this requirement has not been re-enacted in
the amended version of the section, it is extremely likely that, in practice, courts will continue to require the payment of
cash bail save where special circumstances exist or good cause is shown. It is submitted that any factor which the accused
may advance and which may persuade a reasonable court that (a) the accused will be unduly prejudiced if required to post
cash bail in the particular circumstances of the case; and (b) the guarantee which the accused tenders will probably ensure
the accused's attendance at his trial to the same extent that cash bail would have done, will constitute 'good cause'. So, for
instance, the fact that the accused possesses substantial illiquid assets, the liquidation of which might severely prejudice
him (but is nevertheless possible) [21] may satisfy the court that a guarantee in lieu of money is acceptable. However, even
an indigent accused may persuade the court to accept a guarantee in the form of a surety, in which event the financial
status [22] of the surety will constitute the basis of 'good cause'.
11.7 Sureties
The Act allows for the accused to furnish a guarantee in the form of a surety or multiple sureties, in lieu of cash bail and of a
personal guarantee. [23] Such sureties are in the nature of legal or judicial sureties [24] in which the principal obligation is to
be performed in future. [25] In the case of bail bonds the first element of the principal obligation is the accused's undertaking
to stand trial [26] or, stated negatively, not to abscond. The other element is the accused's undertaking to indemnify the
state in the event of his abscondment by agreeing to forfeit a certain amount of cash, or an amount guaranteed in writing
by himself with or without a surety. [27] The surety's undertaking is given on pain of liability to pay a sum of money in the
event of the accused's failure to carry out his own
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obligation. [28] The form of the bail bond is such that the surety acknowledges his indebtedness to the state in a certain
amount on condition that the indebtedness is voided if the accused performs his obligation.
The question is, what obligation of the accused's is secured by the surety? Lansdown & Campbell [29] seem to follow the
approach of Harcourt, [30] to the effect that the surety undertakes to produce the accused at the time and place specified. It
is submitted that the wording of the Act does not support this approach. It must be borne in mind that the whole question
of bail is regulated by the Act and that questions arising must be interpreted within the four corners of the Act (unless the
common law clearly continues to operate). [31] It follows that the nature and extent of a surety's obligations must be
sought in the sections of the Act purporting to provide for these. The only section of the Act dealing expressly with sureties
is s 60(13)(b), which provides that the court may permit the accused 'to furnish a guarantee, with or without sureties, that
he will pay and forfeit to the state the amount that has been set as bail . . .'. It will be seen from the wording of the section
that the guarantee relates only to the sum of money set as bail, and that it does not concern the due fulfilment by the
accused of any other obligation in terms of the bail contract.
It is noteworthy that one is not dealing here with an undertaking by the surety to perform the defaulting accused's
obligation to stand trial, failing which, to indemnify the state. [32] The indemnity is the only obligation that the surety
assumes. It is submitted that the element of the principal obligation secured by the surety is therefore only the financial
indemnification of the state in the event of the accused's failure to perform the other element, namely to stand trial. That
element remains unsecured, and its breach may simply result in the forfeiture of money to indemnify the state on account of
its loss. It is evidently in the surety's own interests to endeavour to ensure that the accused does stand trial; but it is not
an obligation for which he stands in. For this reason it is submitted that Forsyth [33] is wrong in stating that a surety
guarantees the 'performance by the accused person of his obligation so to attend or surrender himself' and that 'the surety
may secure his own release by bringing the accused person and handing him over to be taken into custody'. Similarly,
Lansdown & Campbell [34] are wrong in stating that the surety has more than a pecuniary obligation and that the accused is
actually released into his custody. (Of interest is the statement by White [35] to the effect that the view that the surety
accepts custody of the accused is a legal myth, and that the custom of so releasing the accused has ceased to operate in
England.)
Act 56 of 1955, which was the Act's predecessor, contained provisions that clearly bound the surety to the duty to
ensure the accused's attendance at his
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trial. Sections 100 and 101 read together with s 95 made reference to 'sureties for the attendance and appearance of an
accused'. For that reason, the statements of Caney [36] in terms identical to those used in the later edition of the same
work by Forsyth [37] and quoted above were valid, for they related to the provisions of Act 56 of 1955 and not those
currently operative. There is a manifest distinction, both in the wording and in the substance, between the provisions of Act
56 of 1955 and s 60(13)(b) of the Act. It is submitted that the legislature's omission to describe the surety's obligation
under the Act in terms similar to the descriptions found in the Act's predecessor, signifies an intention on its part not to
bind a surety in the same manner as was done before the promulgation of the Act in 1977. [38]
It may therefore be summarised that, if the accused fulfils either element of his obligation, the surety's obligation will be
voided. For the purpose of assessing the surety's liability, the bail bond must be strictly interpreted without reading into it
any terms implied by the surrounding circumstances of the case or by the particular facts of the case, or by the law. [39]
11.8 Adequacy of sureties

At common law the surety provided by the debtor has to be solvent and of sufficient means to meet the obligations he
undertakes; he has to have a local domicile; and he has to be subject to the jurisdiction of the court. [40] The obligation to
find a surety also involves, according to Pothier, [41] an obligation to replace him if he ceases to possess the requisite
[42]
qualities, although Voet [42] says there is no obligation to find a substitute when the surety has fallen into financial
difficulties. [43] It is submitted that strict compliance with these requirements is no longer necessary, and that the overriding
quality of the surety must be that he is of sufficient means to be acceptable to the creditor. [44] So far as legal or judicial
sureties are concerned, the financial soundness [45] of the surety is the only criterion to be applied, and such factors as his
politics or character [46] and the fact that he may have been indemnified against loss occasioned by forfeiture of the
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amount guaranteed [47] are of no consequence. Although Voet, dealing with such sureties, states a requirement of local
domicile, he adds that the requirement has been relaxed, and it is submitted that this requirement therefore does not apply
absolutely to sureties for bail.
Under the previous Act the insufficiency of sureties, whether ab origine or after a lapse of time, could result in the
accused's arrest and an order for his committal to prison unless sufficient sureties were produced. [48] That section has not
found a place in the present Act. It is of course possible that a surety whose credentials were acceptable at the time of the
accused's release later becomes insufficient to secure the amount of bail that will have to be paid to the state in the event of
the accused's abscondment. The only way in which the surety's obligation can be increased is by increasing the amount of
bail in terms of s 63, for the surety clearly stands in for such increased amount when he enters into the contract of
suretyship. [49] Should the surety's means be insufficient to support his suretyship in the increased amount, the state will
have to carry the risk. It is submitted that there is nothing in the provisions of s 60(13)(b) or s 63 to imply that the
accused must return to custody until sufficient sureties have been furnished. The reason for this position is that the surety
is accepted for the sum of money determined by the court and for subsequent increases. No machinery is provided
whereby the suretyship may be terminated owing to its insufficiency. [50] It follows that where the surety has become
insufficient, not because of an increase of the amount, but because the surety's financial position has deteriorated, the
suretyship cannot be terminated in terms of the Act or the common law.
11.9 Release of sureties

At common law the surety's obligation is extinguished by the extinction of the principal obligation; [51] or because the
nature of the contract of suretyship limits the surety's obligations; [52] or because of conduct on the creditor's part which is
prejudicial to the surety; [53] or by the operation of law. [54] The Act contains no provisions for the release of sureties from
their obligations, and the common-law principles necessarily apply: [55]
Page 186
(1) Extinction of principal obligation

Once the accused has appeared to stand his trial, he has fulfilled the first element of his obligation, and the surety will be
discharged, for his entire obligation to indemnify the state is conditional upon the accused being in breach of this first
element of his own obligation. Should the accused fail to stand his trial, but himself pay and forfeit to the state the
stipulated amount of bail, he will have fulfilled the other element of his own obligation, and the surety will likewise be
discharged.
(2) Obligations limited by contract
It may be that the surety has bound himself to indemnify the state in the event of the accused's failure to appear on the
appointed date only. [56] Should the accused appear to stand trial on that date, he will of course have fulfilled his own
obligation and the condition upon which the surety could become liable will remain incapable of fulfilment; thus the surety will
be released. [57] Should the case be further postponed, the released surety will not be further bound as, apart from the fact
that the principal obligation has been fulfilled, the terms of his surety limited his obligation to a fixed period. Similarly, where
cases are postponed to a 'date to be arranged' or sine die and the surety binds himself for a limited period only, the
accused's failure to stand trial on a date which occurs after the expiry of the fixed period of the suretyship will not affect the
surety, as his obligation will have ceased in accordance with the terms of the contract of suretyship.
(3) Prejudicial conduct of the creditor
The conduct of the state, as creditor, may conceivably prejudice the surety and entitle him to be released from the contract
of suretyship. Thus, if the state and the accused were to agree to a material alteration or variation of the accused's
obligations, that is, an alteration that is prejudicial to the surety, [58] the surety would be released, unless his agreement to
the alteration was obtained. [59] In this regard it must be noted, however, that the Act provides [60] for a surety to be
bound to indemnify the state in the amount originally or subsequently [61] stipulated. The surety may therefore not claim
prejudicial conduct on the state's part where the alteration of the accused's obligations has been a simple increase or
reduction of the amount of bail originally fixed. The state's deliberate or negligent failure to take steps to apprehend the
accused or to withdraw his bail [62]
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when it has become apparent that he is about to evade justice or abscond may, however, constitute conduct on the part of
the state which is prejudicial to the surety. [63]
(4) Operation of law
Although a surety may at common law be discharged by operation of the law, that is, by raising a successful defence of set-
off, [64] it would seem that the provisions of the Act [65] preclude a legal or judicial surety from claiming set-off. [66]
(5) Death of surety
The death of a surety does not discharge his obligations if his death occurred before fulfilment of his obligations, [67]
provided that the liability existed at the time of his death. [68] The obligation is then transmitted to his estate. [69] Where
the surety is for an obligation arising only in future, as with bail sureties (where the surety's obligation is dependent on the
condition that the accused breaches a future obligation), his estate will be liable by virtue of the express terms of the
contract of suretyship, which clearly embraces a future obligation. [70]
(6) Death of accused
The death of the principal debtor at common law does not release the surety. [71] However, the position relating to legal or
judicial sureties is different, and the surety is released if the accused dies before the date of his appearance or
surrender. [72] As the surety's release is based on the accused's blameless failure to attend his trial, it follows that the
accused's death in blameworthy circumstances such as by suicide may not have the effect of releasing the surety, for his
actions will then have thwarted the state which must be indemnified for the accused's breach. [73]
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(7) Application by surety

The Act makes no provision for the release of a surety once obligated. A surety who seeks his release from the contract is
in no position to make application to the court for his release, and will have to avail himself of the grounds for relief offered
by common law. He may also indirectly achieve his release by informing the court of the accused's imminent evasion of
justice or abscondment, in terms of the provisions of s 68 of the Act. In that event the court may order the arrest of the
accused and the discharge of the surety. [74] Under the provisions of Act 56 of 1955 a surety could make application in
terms of s 100 for his release from the contract, or he could render the accused to the court in discharge of his obligation
as surety. These provisions have not been re-enacted in the Act, and it is submitted that a surety is no longer entitled to
seek his release outside the ambit of the Act and the common law. In Da Costa [75] the surety applied to the court for his
release. This was refused by the magistrate on palpably erroneous grounds. However, the case finally came on review to a
Full Bench of the High Court, where it was pointed out that material differences existed between the bail provisions of Act
56 of 1955 and those of the present Act. It was held that no machinery existed today whereby the surety could apply for
his release. It is submitted that the decision is correct in that regard. It was also held that the legislature's omission to re-
enact the old ss 100 and 101 must have been intended, and that the surety was confined to the provisions of the Act. [76]
It is submitted that, the harshness of the surety's obligation under the former Act having been watered down by the
limitation of his liability to a financial indemnity without the added burden of being the accused's custodian, the legislature
reasoned that extraordinary machinery for the surety's release was no longer necessary. It would seem that a surety may
nevertheless indirectly achieve the same results as were contemplated by the old s 100 by furnishing information on oath to
the court to the effect that the accused was about to evade justice or to abscond. In terms of s 68 such information could
lead to the accused's re-arrest, which in turn would entitle the surety to his own release. It must be remembered, however,
that the scope of this section is limited, as the surety has but a single ground upon which to secure the accused's
apprehension and his own release. [77]
(8) Defective bail bond
Although written bail bonds may contain formal defects, it has been held that such formal defects do not constitute
grounds for the discharge of the surety. [78]
(9) Breach of contract by the state
The state and the accused, as contracting parties, are equally bound by the terms of the bail contract as embodied in the
bail bond. If the accused falls in breach of
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the agreement by failing to perform the obligation of financially indemnifying the state, he will not be released and if he is in
breach by failing to stand trial, bail will be forfeited. However, should the state have failed to comply with a term of the bail
bond, a surety will not be obliged to perform by paying and forfeiting the amount of bail to the state. [79]
11.10 Indemnification of sureties and depositors

In terms of s 69(3) of the Act a third party intending to deposit bail for the accused's benefit must be denied the right to do
so if the recipient official has reason to believe that the third party has been (or will be) indemnified against the loss of the
bail money in the event of the accused's abscondment. The section does not concern itself with the person by whom or
manner in which the indemnity is made. The section also forbids the deposit of bail money by a third party if he has received
(or will receive) any financial benefit in connection with the deposit. Although it has been shown above that no obligation
rests on anyone but the accused to ensure that he attends his trial, and that no-one assumes the role of the accused's
custodian once he has been released, to the extent that a third party has a financial interest in the accused's attendance, it
may be said that his indemnification against loss of the bail money deposited is justifiably frowned upon.
Bail is paid in order to ensure that the accused will stand his trial rather than forfeit the amount paid; and where payment
has been made by a third party, it is in his interests to see that the accused attends his trial. [80] Where the third party has
been indemnified against such forfeiture of bail money, neither he nor the accused has any remaining compulsion operating
against abscondment by the accused, and it seems that the section is justified. An apparent omission from the Act,
however, is a prohibition against indemnification of the accused against the loss of bail money that he has paid himself.
Where the bail official is therefore aware, for instance, that the accused is a member of a powerful crime syndicate and that
the syndicate has indemnified him against the loss of his bail money, the official is powerless to refuse receipt of payment of
bail from the accused.
Another notable aspect of s 69(3) of the Act is that it enjoins the bail official to refuse acceptance of a deposit of bail
money made by a third party if he has reason to believe that financial benefit may accrue to the third party. The only
conceivable rationale for this provision seems to be the desirability of nipping in the bud South Africa's fledgling fraternity of
professional bondsmen. The services of professional bondsmen are well established in the bail system of the United States
of America and have been scathingly denounced from several quarters as an unsavoury and undesirable industry that preys
on the unfortunate. [81] Although such bondsmen can undoubtedly perform a useful
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function if strictly controlled, it seems that the inherent dangers of exploitation and harassment of the ignorant, and usury,
weigh heavily against the fraternity when it comes to the contemplation of recognition of their services.
It has been said [82] that the fact that a surety for bail has been indemnified against the loss occasioned by the forfeiture
of the bail money may be sufficient ground for the court or bail official to rule that the surety is inadequate. It is submitted
that this view is open to question. First, the legislature has chosen to forbid in specific terms the indemnification of third
parties who deposit cash bail for the accused's benefit, and not the indemnification of sureties. Secondly, although the
indemnification of sureties may be undesirable or even, perhaps, contrary to public policy, [83] the surety's obligation
extends no further than to provide the state with the amount of bail if the accused defaults on appearance and payment of
bail. Because the surety has no obligation to ensure the accused's attendance, but only a financial interest in the accused's
fulfilment of his own obligation, [84] he is in a position which is no more onerous and, in fact, no different from that of a
third party paying the accused's bail. Significantly, the third party's indemnification is governed by statute, [85] whereas the
Act is silent on the question of indemnification of sureties. It is submitted that, until the Act is amended to prohibit
indemnification of sureties, a financially sound surety who happens to be indemnified against potential loss must be
accepted. [86]
[1] Sections 58, 59(1)(a), 59A(3)(a) and 60(13)(a) of the Act.
[2] Sections 59A(3)(b) and 60(13)(b) of the Act.
[4] Pothier Traité des Obligations (Evans tr) (1806) 463; Commissioner for Inland Revenue v Visser 1959 (1) SA 452 (A) 457; Froman v Robertson
1971 (1) SA 115 (A) 124.
[5] Ibid.
[6] It is submitted that s 69(1) could more appropriately have been drafted into ss 59 and 60 of the Act. Section 59A, which deals with bail granted
by the DPP or a prosecutor, is not referred to in s 69(1). The apparent omission is, however, covered by s 59A(7), which stipulates that bail granted in
terms of s 59(A) 'shall be regarded as bail granted by a court in terms of s 60'.
[7] Mapumulu v Pieterse 1962 (2) SA 198 (D).
[9] Ibid.
[11] Section 59A(3)(a) read with s 50(1)(a) of the Act.
[12] For instance, in terms of s 68A of the Act, which allows for cancellation of bail at the instance of an accused person who is in custody on another
charge or is serving a sentence.
[15] It seems likely that the legislature disapproves of the system whereby attorneys obtain cession of the right to reclaim the bail money. The
practice has been described as undesirable—see Ferreira Strafproses in die Laer Howe (1979) 214; R v Booi 1932 C PD 398. As bail is intended to
secure the accused's attendance at court, the fact that, whether he absconds or stands trial, he nevertheless faces the certain prospect of losing his
money, detracts materially from the coercive power of the bail system whereby the accused is expected to stand his trial rather than forfeit his money.
[17] Sections 59A(3)(a) and 60(13)(b) of the Act.
[18] Section 60(13)(b) of the Act. The guarantee is in the nature of an indemnity.
[19] Sections 59A(3)(a) and 60(13)(b) of the Act.
[20] Either the state or the accused may make such further application in terms of the provisions of s 63(1) of the Act.
[21] So that the liquidated assets may be forfeited to the state in the event of the accused being in breach of his obligations in terms of the bail
contract.
[22] The only relevant factor to be considered by the court under the present bail system is the financial stature of the surety, and not his character
or politics. See Badger (1843) 4 QBD 68. C learly, if an alternative system were to be introduced, whereby the unhealthy and unjust emphasis on
money were to be shifted to encompass acceptable security of whatsoever nature, the character and moral stability of the surety could weigh heavily
with a court.
[23] Section 60(13) of the Act. For a case where the amount of bail was secured in part by cash and for the remainder by surety, see Da Costa v The
Magistrate, Windhoek 1983 (2) SA 732 (SWA). The provision of sureties for the appearance of a person in court was recognised in Roman law—see D
48.3.1-4. The position in Holland was stated by Van Leeuwen Het Roomsch Hollandsch Recht (1780) 4.4.6; Censura Forensis (1741) 1.4.17.12 to have
been such that bail sureties were permitted in minor cases only. However, Voet Commentarius ad Pandectas (1698) 46.1.7 says that sureties were
generally accepted.
[24] Pothier (1806) 386.
[25] Forsyth et al Caney's The Law of Suretyship (2002) 95; Pothier 386.
[26] Or, if bail is sought pending appeal, that he will surrender himself to serve his sentence should the appeal fail.
[27] Writers on the subject have not always recognised the dual nature of the principal obligation. As will be shown below, such recognition is of vital
importance for an understanding of the surety's true obligation in the bail context.
[28] Forsyth et al 95; Lansdown & C ampbell 341. See R v Vermeulen 1958 (2) SA 326 (T).
[30] Harcourt (ed) Swift's Law of Criminal Procedure (1969) 159-60.
[31] Da Costa (above) 740.
[32] C f Forsyth et al 29-30.
[33] Forsyth et al 95.
[35] White 1977 CrLR 338 339.
[36] C aney The Law of Suretyship (1970) 94.
[38] See Da Costa above, 741 and the discussion of the release of sureties in para 11.9.
[39] Long (1883) 3 EDC 16; Voet 46.1.12; Wessels The Law of Contract (1951) 3890-9; Pothier 404. C f Van der Linden Koopmans Handboek (1806)
1.14.10 and contrast F J Hawkes and Co Ltd v Nagel 1957 (3) SA 126 (W).
[40] Voet 46.1.2, 2.8.2-3. In the United States of America similar qualifications are expected of bail sureties—see Weston & Wells The Administration
of Justice (1977) 141.
[41] Pothier 390-1.
[42] Voet 46.1.2.
[44] Ibid.
[45] Harcourt 166. The position in C anada is largely similar. Thus, for example, the surety need not possess fixed property or any other qualification
—see Powell Arrest and Bail in Canada (1972) 33-4.
[46] See Badger [1843] 4 QBD 68.
[47] Voet 46.1.2.
[48] Act 56 of 1955, s 99.
[50] The wording of s 60(13)(b) has, it is submitted, thwarted the state. It seems that the section was included to assist the state in binding sureties
for both initial and future amounts of bail, to ensure the state's indemnification in the event of the accused's abscondment.
[51] Forsyth et al 163; Van Leeuwen 4.4.16.
[52] Forsyth et al 168-9.
[53] Wessels 4395; Forsyth et al 169.
[55] Act 56 of 1955, s 100 provided for the release of sureties on application to the court. Section 101 provided for the surety to produce the accused
at court during any of its sittings, in discharge of his obligations. See in this regard Harcourt 167-8.
[56] Although it is customary to bind the surety for all appearances until the trial is finalised.
[58] Wessels 4295, 4304; Forsyth et al 169.
[59] Wessels 4299.
[60] In s 60(13)(b) of the Act.
[61] By means of increasing or reducing the amount of bail in terms of s 63(1) of the Act. C f the provision for the arrest of the accused in the event
of insufficient sureties, contained in s 99 of Act 56 of 1955.
[62] In terms of s 68 of the Act.
[63] The issue was raised, but not decided, in Da Costa (above) 739.
[64] Forsyth et al 173-4.
[65] Sections 66, 67 of the Act.
[66] If, however, the accused and the surety fail to pay the amount forfeited, the state may have to bring civil proceedings to recover the amount
due. See also Ferreira 212. It is conceivable that in formal proceedings for recovery the defence of set-off may be raised.
[68] Voet 46.1.26; Pothier 417.
[69] Forsyth et al 91; Ferreira 213.
[70] Forsyth et al 91. Act 56 of 1955, s 103 provided for the discharge of the surety's estate from all liability in respect of the contract of surety.
However, this provision has not been re-enacted, and the common law applies.
[71] Voet 46.1.8; Pothier 384; Wessels 3919; Forsyth et al 91.
[72] Voet 46.1.37. The reason is that the accused's death, while depriving the state of the opportunity of bringing him to justice by proving his guilt
and having him punished, cannot be blamed on him or his estate. His blameless failure to stand his trial releases the surety. See Cassim v Regional
Magistrate, Pretoria 1962 (2) SA 440 (T); S v Casker 1971 (4) SA 504 (N). But contrast n 73.
[73] Ex parte Estate Phillips 1958 (1) SA 803 (N). The accused had committed suicide, clearly (but contrast the separate concurring judgment of
Henochsberg J) to avoid standing his trial. Said Holmes J (808G): '[I]n an ordered society it is in the public interest that an accused person stands his
trial; and in this case the accused flouted the conditions of his bail knowing that he ran the risk of forfeiture.' The decision is supported by Lansdown
1958 SALJ 28. See also S v Cronjé 1983 (3) SA 739 (W).
[74] Section 68 of the Act. See also Da Costa (above) 740-1.
[75] Above, 740F.
[76] Above, 741A.
[77] Above, 740G.
[78] Smith 1947 (1) PH H9 (C ).
[79] Vivian 9 C TR 221; Colonial Govt v Swaab 3 HC G 4; Long (1883) 3 EDC 1. C f Kuhn v Attorney-General 9 SC 54.
[80] In R v Du Plessis 1957 (4) SA 463 (W) 464-5 it was said that 'the principal question remains whether the amount is such that the accused would
prefer to retain it and stand trial rather than lose it . . .'.
[81] Ferreira 214-15.
[82] Lansdown & C ampbell 341-2; Harcourt 160.
[83] C f Lansdown & C ampbell 342.
[84] Ferreira 214 states that the surety's interest is financial. He adds that such interest will probably incline the surety to 'keep an eye over the
accused'.
[86] Harcourt (ed) Swift's Law of Criminal Procedure 166 acknowledges that the financial status of the surety is the only criterion to be applied. See
also Badger [1843] 4 QBD 68. For a discussion of the adequacy of sureties, see para 11.8. Lansdown & C ampbell cite no authority for their assertion
that a surety should be regarded as unacceptable once he has been indemnified. Harcourt 160, from whom Lansdown & C ampbell 342 seem to have
drawn the relevant passage, was dealing with the Act's predecessor, namely Act 56 of 1955, where the surety's obligation extended to a duty to ensure
the accused's attendance at his trial—see ss 95, 100 and 101 of the Act. The cases there cited refer to English law, where the surety's duty has likewise
been to ensure the accused's attendance at court—cf Herman v Jeuchner [1885] 15 QBD 561; Consolidated Exploration and Finance Co v Musgrave
[1900] 1 C h 37; Porter [1910] 1 KB 369. As discussed above, the English position no longer obtains in South Africa and probably not even in England—
see White (above) 338 339.
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12
Cancellation of bail
12.1 Introduction
An accused person who applies for and is granted bail will be released from custody upon payment of the sum fixed as
bail. [1] Such bail will always be coupled with the condition that the accused stands trial, [2] and may be coupled with further
conditions authorised by the Act. [3] Should the accused fail to observe any of the conditions of his bail, he runs the risk of
arrest and forfeiture of the bail money. [4] A similar fate may befall him if he is about to abscond [5] (thus breaching the
absolute condition of his bail). In very limited circumstances the accused may himself apply for his bail to be cancelled. [6]
The various circumstances under which bail may be cancelled are discussed in the following paragraphs.
12.2 Failure of accused to appear: general

As was noted above, [7] it is an absolute condition of every accused person's release on bail that he must appear to stand
trial at the appointed time and place. [8] Section 67(1) of the Act therefore stipulates that a breach of this condition by the
accused's failure to appear at the time and place appointed for his trial [9] or to which the trial has been postponed, [10] or
to remain in attendance at such trial, [11] shall result in the provisional cancellation of bail and the provisional forfeiture of
the bail money. [12] The section requires the court to issue a warrant for the accused's arrest after the provisional
cancellation of bail.
If the accused appears before the court within 14 days of the issue of the warrant for his arrest, the accused may satisfy
the court that his failure to appear
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was not due to fault on his part. [13] If he succeeds in doing so, the provisional orders made by the court in terms of s
67(1) shall automatically lapse. [14] If he fails to satisfy the court of absence of fault on his part, the provisional orders shall
be confirmed. [15]
The court may 'on good cause' extend the period of 14 days within which the accused is expected to appear in order to
qualify for the privilege of persuading the court of his blamelessness in defaulting. [16] If the accused fails to appear before
the court within 14 days of the issue of the warrant for his arrest (or, if the period of 14 days has been extended, within
such extended period), the provisional orders referred to shall become final: [17] the accused's appearance out of time
cannot be condoned, and he cannot salvage the opportunity of persuading the court that his failure to appear was not due
to fault on his part.
12.3 Failure to appear: interpretation of s 67

It is clear from the wording of s 67 of the Act that the consequences of the accused's failure to appear may be, at worst,
that bail is cancelled and the bail money forfeited: an interpretation leading to the conclusion that the accused may also be
summarily sentenced on the strength of the provisions of ss 67 and 72(4) being read together is not warranted by the
wording of s 67. [18] As will be seen below, s 67A of the Act now provides in terms for punishment in addition to cancellation
of bail.
The employment of the word 'shall' in the section indicates that the provisions are peremptory: the court has no
alternative but to order the provisional cancellation and forfeiture and to issue a warrant for the accused's arrest; [19] or to
confirm the provisional order if the accused fails to satisfy the court of his blamelessness; [20] and, similarly, if the accused
does not satisfy the court of his blamelessness the provisional order cannot be confirmed, [21] while his failure to appear
timeously after the issue of the warrant for his arrest must result in confirmation of the provisional order. [22] It is
submitted that the correct interpretation of the section is that it only has application to the living. Once the accused has
died and has therefore become absolutely unable to comply with the bail condition that he should attend his trial, there
appears to be no room for implementation of the provisions of the section, for instance for the court to authorise and the
police to attempt to execute a warrant for his arrest. This argument was presented by most eminent counsel before a Full
Bench of the
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Natal Supreme Court in Ex parte Estate Phillips. [23] However, the argument was rejected in view of the 'plain meaning' of
the erstwhile s 106 of the then applicable Criminal Code. [24] As Holmes J (as he then was) stated with regard to this
argument and counsel's associated submissions regarding the meaning of 'default' by the accused:
I reject this argument as being an over-refinement of reasoning. In my view an accused person w ho takes his life to avoid standing
his trial clearly makes default in the condition of his recognizance or deposit.
The issue came up once more for decision when, in Engelbrecht, (41/918/2011) [2012] ZAGPJHC 38 (23 March 2012)
(unreported elsewhere at the time of writing) [25] the accused's brother, who had paid the bail money on behalf of the
accused, made claim to reimbursement after the death of the accused in a motor vehicle collision before commencement of
the trial. In circumstances where the accused's death certificate reflected the cause of his death as 'unnatural cause' an
'innuendo' was put forward by the prosecution that the accused had committed suicide to avoid standing trial. (It is
noteworthy that no inquest had been held to determine whether suicide was a feasible suggestion; but the surrounding
circumstances, namely that the accused was to stand trial for the murder of his wife and child, gave rise to the speculation
that he had taken his own life.) Meyer J held that the case was distinguishable from that which served before the Natal
Supreme Court in Ex parte Estate Phillips, [26] as the wording of the applicable section had been changed in the
meantime. [27] Ordering the return of the bail money to the deceased accused's brother, the learned judge held: [28]
[8] The language used in s 67 of the CPA is clear and unambiguous and must accordingly be given effect to. The provisions of s 67 of
the CPA find no application when the default is due to the passing away of a former accused, whether or not the cause of his or her death
was a natural or an unnatural one, such as suicide. This interpretation, in my view, also accords with the obvious purpose of the bail
provisions, which is to ensure the attendance of an accused person. Nothing in the context of the CPA indicates that the w ords used
should not be given their plain and ordinary meaning.
[9] The Legislature, in my view , did not intend a court to embark upon an investigation into the question w hether the accused is alive
or not before issuing an order contemplated in s 67(1). If a court only becomes aw are of the passing aw ay of an accused after it had
issued a provisional cancellation and forfeiture order and w arrant of arrest in terms of s 67(1) of the CPA, then, depending on the
circumstances of a particular case, the provisional order, it being interlocutory, could be recalled or rescinded (compare: S v Zibula
1968 (2) SA 956 (E), p 598G) or the provisions of s 70 of the CPA could be invoked to bring about the repayment of the bail money.
[10] The provisional forfeiture order that w as granted in S v Cronje [1983 (3) SA 739 (W )] can never become a final one since a
w arrant of arrest had, in my view appropriately, not been issued. An order for the provisional cancellation of bail and for forfeiture of
bail money can
Page 194
only become final in the event of a defaulting accused, w ho appears before the court w ithin fourteen days of the issue of a w arrant of
arrest, fails to satisfy the court that his or her failure to appear w as not due to fault on his or her part, or in the event of his or her
non-appearance w ithin fourteen days, or any extended period, of the issue of a w arrant of arrest.
But, in circumstances where the accused remains alive and well, what is meant by the provision of s 67(2)(c), whereby the
provisional order of cancellation of bail must be confirmed if the accused fails to appear within 14 days of the issue of the
warrant for his arrest, or within 'such extended period as the court may on good cause determine'? Certainly it does mean
that the court is entitled to extend the 14-day period—but what does 'good cause' mean in the context? Usually it means
that the person seeking the indulgence should show absence of fault and prospects of success should the indulgence be
granted. [29] However, that interpretation does not seem to fit the circumstances contemplated by s 67: if the accused
appears within 14 days of the issue of the warrant for his arrest, no extension of time is required and s 67(2)(c) does not
apply; if he does not appear within 14 days, s 67(2)(c) prescribes the final cancellation of bail.
At what stage is the accused supposed to appear to apply for an extension of the 14-day period? It is submitted that the
legislature may have had in mind the situation where the accused does not appear within 14 days of the issue of the
warrant for his arrest; where bail is thereupon cancelled under s 67(2)(c); and where the accused subsequently appears
with an acceptable explanation of both his failure to stand trial and his failure to appear within the 14-day period—for
example, where the accused explains that he was in a coma at all material times and could thus neither appear to stand trial
nor comprehend the warrant of arrest; or where he explains that he was ill at the time of his trial and that the warrant of
arrest was executed only after expiration of the 14-day period. In such cases it would be unjust to allow the cancellation
and forfeiture of bail to stand, [30] and it may be that the legislature intended the section to give a court the power to
rescind the order on good cause shown by the accused. [31] This may usually be done provided that the applicant for
rescission asks for it within a reasonable time of the order coming to his notice. [32]
Another possibility is that it was intended that the accused may formally appear within the 14-day period but may, by
showing good cause, at such appearance, obtain an extension of time within which to satisfy the court that bail should not
be finally cancelled. [33] Finally, it may be that the legislature envisaged that good cause could be shown by someone else,
on the accused's behalf, where the accused remains absent; for example, if the accused is in a coma or ill or stranded
somewhere, his attorney could conceivably obtain
Page 195
extension of the 14-day period by apprising the court of the accused's plight, thereby forestalling a final cancellation of bail.
The phrase 'within 14 days of the issue . . . of the warrant of arrest' [34] means that the accused's appearance is
expected before expiration of the 14-day period. It is important to note that that period does not commence at the time
the court authorises the warrant, but only once it is issued. 'Issued', in turn, means that the document in question must
have been sent out or emitted, and not merely drawn up and signed. [35]
Section 67(2)(a) of the Act stipulates that bail must be cancelled 'unless the accused satisfies the court' of his
blamelessness. 'Unless' implies that the accused's default will prima facie result in cancellation of bail, but that the prima
facie result may be neutralised by the accused's satisfactory explanation. To 'satisfy' the court of his blamelessness does
not mean that the accused must prove such; it simply means that there must be a fair probability' that the accused's
explanation is bona fide and good. [36]
12.4 Failure to appear: court having jurisdiction

Section 67(1) of the Act prescribes that if an accused person who is released on bail fails to appear at his trial or fails to
attend postponed proceedings 'the court before which the matter is pending' must deal with the cancellation of bail. This
would ordinarily mean that the officer presiding in the court where the accused was supposed to appear would have
jurisdiction. Where, however, the accused's trial has been postponed after the hearing of evidence, the judicial officer then
presiding will be seized of the matter and will remain 'the court before which the matter is pending'. But it must be noted
that the unavailability of the presiding officer before whom the accused has pleaded will change the usual position: thus, if
the judicial officer's unavailability arises after plea but before evidence has been led, the trial may be continued before
another judicial officer; [37] so, too, the accused may be sentenced by a judicial officer other than the one who convicted
him. [38] In such cases the accused's non-appearance on the postponed date of his trial may be dealt with by the judicial
officer who was scheduled to continue with the trial or to pass sentence.
If the accused's trial is adjourned after evidence has been led, the subsequent permanent unavailability of the presiding
officer will result in the nullification of the proceedings. [39] In that case the accused's bail may be cancelled by any court
before which his case is brought. However, if a judicial officer is merely temporarily unavailable or is transferred after
evidence has been led, the matter
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remains pending before that judicial officer, [40] and it is submitted that the question of cancellation of bail may not, in such
cases, be dealt with by another court.
12.5 Failure to appear: procedure and onus

The court having jurisdiction must, before it issues a warrant for the accused's arrest under s 67(1) of the Act, first satisfy
[41]
itself that the accused has failed to appear. [41] In order to do so, it 'may receive such evidence as it considers
necessary.' [42] Such 'evidence' usually consists of the statement by the court orderly to the effect that he has audibly called
the accused's name inside and outside the courtroom and received no response. Not infrequently a flustered and
embarrassed legal representative will announce to the court that his client is nowhere to be found. Such 'evidence' must be
recorded. [43]
If the accused appears before court within 14 days of the issue of a warrant for his arrest, his bail will be finally cancelled
unless he satisfies the court that his failure to appear was not due to fault on his part. [44] The manifest intention of the
section is that the accused bears an onus of satisfying the court. It is submitted that, in order to satisfy the court, the
accused will be required to lead evidence, and that the state will be allowed to counter that evidence with evidence of its
own. All the procedural rules pertaining to adversary proceedings will apply. The Act does not expressly require that such
evidence should be recorded, but it is desirable that the court does record the proceedings in full.
12.6 Failure to observe conditions: general

If the accused is released on bail subject to any of the specific conditions imposed under s 60 or s 62 of the Act or after
amendment or supplementation [45] of conditions imposed under those sections, he must observe those conditions or run
the risk of having his bail cancelled. Section 66(1) of the Act provides that the court having jurisdiction may hear evidence of
any breach of his bail conditions by the accused and may, if the accused admits such breach or if the court finds on the
evidence that he was in breach, cancel the bail. [46] However, as will appear from the following paragraphs, the Act
prescribes a particular procedure which must be followed before bail may be cancelled under s 66. Also, in contradistinction
to s 67, bail is not cancelled provisionally for, as will be seen, it is cancelled in the accused's presence.
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12.7 Failure to observe conditions: application by prosecutor

While under s 67 of the Act the court acts mero motu to implement the procedure whereby the accused's bail may
eventually be finally cancelled, s 66 does not permit such a course. The section prescribes that the prosecutor must apply
to the court to lead evidence to prove that the accused has breached a condition of bail. [47] Upon such application the court
is obliged to hear evidence, unless the accused admits the allegation or is absent. [48]
12.8 Failure to observe conditions: presence of accused

Bail will not be cancelled and, indeed, proceedings directed at the cancellation of bail on the grounds of breach of bail
conditions will not take place in the absence of the accused: s 66(1) of the Act expressly permits the presentation of
evidence by the state regarding an alleged breach of conditions only if the accused is present. [49] Section 66(2) makes
provision for the court to issue a warrant for the accused's arrest in order to secure his presence, and provides further that
the prosecutor may lead his evidence once the accused is present. If the warrant of arrest cannot be executed, the
presentation of evidence will simply have to stand over until the date of the accused's next scheduled appearance. Should
the accused not be present on that date, the prosecutor will still not be permitted to lead evidence under s 66; but the
court will then be obliged provisionally to cancel bail under s 67.
12.9 Failure to observe conditions: court having jurisdiction

Section 66(1) of the Act stipulates that the court to which the prosecutor's application to lead evidence must be made, is
the court 'before which the charge with regard to which the accused has been released on bail is pending'. This means that
an application by the prosecutor to lead evidence under s 66 cannot be entertained by a court before which another (or no)
charge against the accused is pending. Also, once the accused has pleaded to the charge with regard to which he has been
released on bail, the court before which he pleaded will be seized of the matter. [50]
12.10 Failure to observe conditions: procedure and onus

As was noted above, [51] the accused must be present at proceedings where his bail is sought to be cancelled on account of
a breach of bail conditions. Such proceedings are initiated by the prosecutor, who applies to the court to lead
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evidence to prove the accused's breach. [52] If the accused is not present, the court may issue a warrant for his arrest to
secure his presence. [53] Once the accused is present, the court will ask him whether he admits or denies the alleged breach
of his bail conditions. Should the allegation and fault be admitted, the court may (but is not obliged to) cancel the bail. [54]
Should the allegation be denied, the court is obliged to 'hear such evidence as the prosecutor and the accused may place
before it'. [55] Even if the accused admits having breached his bail conditions, but denies fault on his part, the process of
presenting evidence will commence. [56] The normal rules of procedure relating to adversary proceedings will apply.
Section 66(1) of the Act makes it clear that the prosecutor bears the onus of proving a breach of conditions on the
accused's part. Once the prosecutor has succeeded in proving the breach, the onus passes to the accused, who then has
to show why cancellation of bail should not follow. [57]
The proceedings and the evidence under s 66 must be recorded. [58]
12.11 Failure to observe conditions: fault

The mere failure by the accused to observe his bail conditions does not permit the cancellation of bail. Section 66(3) of the
Act stipulates that the court may cancel bail if the accused admits or the court finds a breach of bail conditions, provides
that 'it finds that the failure by the accused was due to fault [59] on his part'. This will only appear after evidence has been
led to prove fault (unless fault is admitted), and not from the bald allegation of fault made by the prosecutor. [60]
12.12 Failure to observe conditions: court's discretion

Section 66(3) of the Act gives the court a discretion as to whether or not the accused's bail should be cancelled, even
though the court has found a breach of his bail conditions by the accused which may be attributed to his fault. On the other
hand, the court is not obliged to refrain from cancelling bail, where a breach and fault have been proved, only because it
[61]
cannot be said that a failure to cancel bail will result in a failure of justice. [61]
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12.13 Accused about to abscond: general

The provisions of ss 66 and 67 of the Act are obviously aimed at cancellation of bail and detention in custody of accused
persons who have failed to comply with the general [62] or specific [63] conditions of their release on bail. The situation may,
however, arise where the accused, having been released on bail, has meticulously followed the terms of his bail conditions,
but nevertheless intends absconding—either at a pre-planned time or simply when the time seems right. When the state
becomes aware of the fact that the accused is about to abscond, it requires a remedy to thwart the accused's plans. This
remedy is supplied by s 68 of the Act, which provides for pre-emptive arrest and cancellation of bail. It will appear from the
following paragraphs that bail cannot be cancelled arbitrarily or on mere suspicion that the accused might abscond. For
instance, if at the conclusion of argument in a company fraud trial the case is adjourned and judgment reserved, the
accused's bail stands: [64] it cannot be cancelled merely because the accused, as the company's accountant, could follow the
evidence and arguments and must realise that conviction and imprisonment are inevitable; nor even if, on top of it, the
accused owns an aircraft and possesses the means to abscond. [65]
A distinction must be drawn between the provisions of s 68(1) and those of s 68(2). The former concern cases where
time is not of the essence; the latter are employed where the matter is one of urgency. [66]
12.14 Accused about to abscond and time not of the essence

If the state has information that the accused plans to abscond but that time is not of the essence, it may in terms of s
68(1) of the Act place such information before the court before which a charge is pending in respect of which the accused
has been released on bail. [67] Such information must be presented on oath, either viva voce or in writing. [68] The court
may (but is not obliged to) issue a warrant for the accused's arrest; it may also make any order which it deems proper; and
such order may include cancellation of the bail and the accused's detention until his trial is concluded.
The question arises whether the accused has a right to be heard before his bail is cancelled. On the one hand it can be
argued that the legislature has made provision for the accused to be heard where he is alleged to be in breach of his
conditions [69] and even where he has actually absconded, [70] and could not possibly
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have intended that he should be denied that opportunity where he is merely alleged to be about to abscond. On the other
hand, there may be significance (if not logic) in the fact that the right to be heard has been excluded from s 68. [71] It is
submitted that the accused's bail should not be cancelled without his having the opportunity of stating his side of the story.
This may be achieved by allowing the accused to give evidence after his arrest on the strength of the warrant issued under
s 68(1). Such a course would not be a violation of the wording of the section, for it expressly allows the court to 'make
such order as it may deem proper'; and it would certainly be more consonant with the Bill of Rights. The admirably analytical
judgment by Waglay AJ (as he then was) in Oehl [72] is accordingly supported:
Does s 68(1), however, require that a trial process be undertaken where witnesses provide the information and are liable to be cross-
examined and the accused is present in court? This must be so. The possible consequences of an application in terms of this section are
extremely severe: If the accused's bail is cancelled, the accused is not able to apply for bail and consequently will not be released until his
criminal trial is finalised. (Emphasis added.)
12.15 Accused about to abscond and time of the essence

In most instances where the accused is about to abscond, time will probably be of the essence. In such cases circumstances
may not permit the constitution of the court before which a charge is pending in respect of which the accused has been
released on bail. To circumvent this problem the Act provides in s 68(2) that an approach may be made to 'any
magistrate'. [73] The approach may be made by way of application by any peace officer, accompanied by a written
statement [74] on oath that he has 'reason to believe' that the accused is about to abscond. [75]
The magistrate concerned may (but is not obliged to) issue a warrant for the accused's arrest; and may cancel the bail
and commit the accused to prison if he is satisfied that the ends of justice may otherwise be defeated. [76]
Again, the question arises whether the accused may be heard. It follows from the urgent nature of the procedure
prescribed by s 68(2) that it may be impracticable to bring the accused before the duty magistrate more or less
contemporaneously with the proceedings; and it may not be possible to bring him before that magistrate upon his arrest
perhaps hours later. However, it appears that the accused must nevertheless be given an opportunity of stating his case on
the cancellation of bail: first, s 68(2) stipulates that the warrant for the
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accused's arrest may be issued upon the information placed before the magistrate by the peace officer concerned, but that
cancellation of bail may be ordered only if the magistrate is satisfied that such an order is necessary to preserve the ends
of justice. It is submitted that he may be 'satisfied' only after hearing the accused. [77] Secondly, s 68(2) provides for the
accused's detention (following cancellation of his bail) until the conclusion of his trial 'unless the court before which the
proceedings are pending sooner reinstates bail'. This provision necessarily implies that, although one magistrate may order
cancellation of the accused's bail, the court presiding over his trial may order the reinstatement of bail. It is submitted that
such reinstatement presupposes that the accused has made representations. The import of the provision is that the
magistrate's cancellation of bail, while final in its immediate effect, may ultimately be only provisional.
Finally, it is important to note that, when time is of the essence, it need not be shown that the accused is about to
abscond, but only that a peace officer 'has reason to believe' such. This means that the peace officer's belief must be
genuinely held, reasonable and based on facts. Those facts must be placed before the magistrate to enable him to assess
their cogency. [78]
12.16 Accused interfering with state witnesses etc

Until 1995 [79] s 68 of the Act provided that a court could issue a warrant for the arrest of an accused person and
furthermore cancel his bail if he was 'about to evade justice or . . . to abscond in order to evade justice'. Section 68 of the
Act was then extended to provide for the accused to be arrested and his bail cancelled when information was placed before
a court that the accused 'interferes or threatens or attempts to interfere with witnesses, or that the accused defeats the
ends of justice or that he or she poses a threat to the safety of the public or of a particular person, or that it is in the
public interest to do so'. Section 68 of the Act has since been further extended [80] to empower a court to issue a warrant
for the accused's arrest and cancel his bail where he has not disclosed (or has not correctly disclosed) all his previous
convictions at the bail hearing—or where such previous convictions have come to light after his release; or where further
evidence has become available or 'factors have arisen, including the fact that the accused has furnished false information in
the bail proceedings, which might affect the decision to grant bail'. [81]
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In addition, the 1995 reference to 'the public interest' has now been amended to read 'the interests of justice'. [82] It is
submitted that this amendment was necessitated by the overly broad and undeniably nebulous content of the term 'public
interest'. Thus, in R v Morales [83] the following was held:
'The public interest' criterion for pre-trial detention . . . violates s 11(e) [of the Canadian Charter of Rights and Freedoms] because it
authorises detention in terms w hich are vague and imprecise. The principles of fundamental justice preclude a 'standardless sw eep' in
any provision w hich authorises imprisonment. The various authorities w hich have considered the meaning of 'public interest' have not
established any w orkable meaning for the term. The public interest criterion therefore violates s 11(e) and it cannot be upheld as a
reasonable limit w ithin s 1 of the Charter. Even if the term 'public interest' w ere capable of passing the threshold test under s 1 of
being a limit w hich is prescribed by law , it cannot meet the proportionality test. There is no rational connection betw een the measure
and the objectives of preventing crime and preventing interference w ith the administration of justice, objectives w hich w ould be
sufficiently important to w arrant overriding a constitutionally protected right. The provision is so vague that it does not provide any
means to determine w hich accused are most likely to commit offences or interfere w ith the administration of justice w hile on bail. . . .
The vague and overbroad concept permits far more pre-trial detention than is required to meet the limited objectives of preventing
crime and preventing interference w ith the administration of justice by those w ho are on bail. [84]
Section 68(2) of the Act [85] furthermore provides that a magistrate may, in circumstances in which it is not practicable to
obtain a warrant of arrest under s 68(1), issue a warrant for the accused's arrest and cancel his bail on any of the grounds
set out in sub-section (1), 'upon the application of any peace officer and upon a written statement on oath by such officer'
that he had reason to believe that one of the eventualities set out in s 68(1)(a) to (d) has arisen, or that (as a fact) one of
the factors contemplated in s 68(1)(e) to (g) has come into existence.
Finally, it is noteworthy that, whereas s 68(1) of the Act, before 1998, empowered a court to issue a warrant for the
accused's arrest and cancel his bail where the accused has been released on bail, the amended section now extends such
power to any court 'before which a charge is pending in respect of which bail has been granted . . . , whether the accused
has been released or not . . .' [86] . This amendment clearly caters in particular for the situation where the list of the
accused's previous convictions has become available subsequent to bail being granted, but prior to the accused's release.
12.17 Accused about to abscond, or interfering with state witnesses etc: procedure
and onus
The procedure which is likely to be followed under s 68(1) of the Act is that the prosecutor will place affidavits before the
court or call witnesses who are able to
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testify that the accused is about to abscond or commit any of the other breaches mentioned in that sub-section. Once the
accused is brought to court or for that matter appears of his own accord, [87] the court is obliged to hold a full hearing akin
to a trial, in which the accused is required to be present and permitted to cross-examine and present evidence. This was
held by the High Court on review in Oehl v Additional Magistrate, Bellville: [88]
In an application in terms of s 68(1) the State must satisfy the court on a balance of probabilities that further restrictions are placed
upon the accused w ho has been granted bail, or his bail be cancelled and he or she placed in custody. For the court to be satisfied
that the State has discharged the onus it bears, a full and proper hearing has to take place. Insofar as this subsection also records that
the court may issue a w arrant of arrest, this does not presuppose that in deciding upon the appropriate order in respect of placing
conditions upon the bail or cancellation thereof, the accused need not be present in court. To only allow the State to present
evidence w ithout the accused being informed of the application or being present w ould not be in compliance w ith the provisions of
this section. (Emphasis added.)
It is submitted that it follows from the accused's right to be present and to present his case that he would also be entitled
to be legally represented.
It is further clear from the above dictum that the state bears the onus.
In contradistinction to s 68(1), proceedings under s 68(2) of the Act are initiated by a peace officer who places an affidavit
before a magistrate. Again, a prima facie case will suffice to obtain a warrant of arrest; but in order to move the magistrate
to cancel bail he will have to be 'satisfied', which implies that a case for cancellation should be made out at the level of
probability. [89] Thus Waglay AJ (as he then was) held, in Oehl: [90]
Section 68(2), on the other hand, recognises that it may not be possible for an accused to be brought to court before w hich he is
charged, or at any other court for that matter, and thus makes provision for an application to be brought before any magistrate and
upon a w ritten statement by a peace officer w hich statement must be made under oath. It is manifest that ss (2) makes provision for
an ex parte application. Although the effect of the possible orders in terms of s 68(2) is also harsh, there are very specific restrictions
on the use of s 68(2): Firstly, it can only be utilised w here it is not practicable for the State to obtain a w arrant in terms of s 68(1).
Secondly, the magistrate before w hom the application is made may simply order that the accused be arrested and taken before the
court in w hich he is to appear on trial for that court to decide further on the accused's bail or if the magistrate is satisfied that unless
the accused is placed in custody the ends of justice w ill be defeated, cancel the bail.
For the State therefore to obtain an order in terms of s 68(2) it must satisfy the magistrate that it is not practical for it to obtain a
warrant of arrest in terms of ss (1). Not practical in this context is more than mere inconvenience, in fact it is much more, the State will
have to show that circumstances exist that compel a departure from following the provisions of s 68(1). . . . The real value of s 68(2) is in
w hat the magistrate may do if he is satisfied that it w as not practicable for the State to obtain a w arrant in terms of s 68(1) and that
is to issue a w arrant and order the detention of the
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accused, but not order the cancellation of bail unless he is satisfied that the requirements as set out in the subsection have been
met, and order that the accused remain in custody pending a hearing in terms of s 68(1). That is, order that the accused be arrested
and taken before the court before which he faces the charges preferred against him so that that court can decide, on evidence there
presented, whether or not to cancel the bail or place further restrictions on the accused's bail. (Emphasis added.)
12.18 Cancellation at request of accused
Whereas ss 66-68 of the Act are concerned with cancellation of bail and forfeiture of bail money owing to blameworthy
conduct on the accused's part, s 68A deals with cases where the accused's release on bail has been rendered ineffective by
the fact that he has been detained on another charge or is serving a sentence. In such circumstances the accused's bail is
worthless to him, and his bail money is tied up without offering him any benefit. In terms of s 68A the accused may now
approach the court before which the charge is pending in respect of which he has been granted bail, and obtain cancellation
of his bail and a refund of the bail money. It must be noted that an accused person who experiences hardship because his
funds are tied up in the bail contract cannot follow this procedure: only accused persons who are in custody on another
charge or serving sentence may avail themselves of the provisions of the sub-section.
12.19 Effect of cancellation

As was noted above, [91] s 67(1) of the Act provides for the provisional cancellation of bail. The section goes on to prescribe
the effect of such provisional cancellation, namely provisional forfeiture to the state of the bail money. Such provisional
cancellation and the concomitant provisional forfeiture become final if the accused fails to satisfy the court that his default
was blameless [92] or if the accused does not appear before the court following the warrant of arrest. [93] Under s 66 the
accused's failure to observe a condition of his bail may lead to cancellation of his bail and forfeiture to the state of the bail
money. [94] However, s 68 is altogether on a different footing: that section allows the state (and the court) to anticipate the
accused's imminent abscondment by providing for cancellation of his bail. The effect of such cancellation is that the accused
who represents a risk of imminent abscondment is returned to custody to safeguard the interests of the administration of
justice; as such an accused has not yet absconded he is not punished in any other way, and the section does not permit
the forfeiture of his bail money in consequence of the cancellation of his bail. Finally, where the accused has obtained the
cancellation of his bail at his own
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request by virtue of s 68A, the bail money will be refunded to him.

Once the accused's bail has been cancelled, he is returned to custody. There is, however, no reason why the accused
should not be permitted to bring a fresh application for bail. [95] Indeed, the Act contains no prohibition of bail in such
circumstances. Furthermore, the accused may obtain executive remission of his bail money. [96]
In addition to the above consequences of an accused person's breach of his bail conditions, he may also be charged and
sentenced. This aspect is dealt with above. [97]
12.20 Appeal and review of cancellation of bail

Superior courts have generally shown a reluctance to interfere where lower courts have cancelled an accused person's bail.
Attempts to assume an extensive jurisdiction on appeal in such matters [98] have subsequently been called into
question. [99] However, the superior courts have been assertive in exercising review jurisdiction in appropriate cases
stemming from the cancellation of bail by lower courts. These aspects are more fully discussed below. [100]
12.21 Refund of bail money

As was noted above, [101] bail endures until verdict [102] or sentence [103] in the trial. [104] Once bail lapses, the accused is
returned to custody or is released, depending on the verdict or the nature of the sentence. The lapse of bail signals the
right of the accused to obtain the refund of the bail money, unless such was precluded by an order that the accused should
forfeit it. [105] Refund is obtained by presentation of the bail receipt at the office of payment. It is important to note that bail
money may be returned only to the initial depositor thereof: [106] thus, if the accused himself deposited bail money, it will be
refunded to him; and if someone else deposited bail money on the accused's behalf, the money will be refunded to that
person. The Act expressly stipulates that the fact that the depositor has ceded the bail money [107] or part thereof to
someone else is immaterial. It appears that s 69(2) of the Act seeks to put a stop to the practice whereby attorneys obtain
cession of the depositor's interest in the bail money as cover for their fees
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and cash the bail receipt at the relevant time without intervention of the depositor. [108] In Minister van Justisie v Jaffer [109]
the registrar of the Cape High Court had made out a cheque for the refund of bail money to a third party, at the request of
the depositor who also endorsed his request on the bail receipt. The trial judge remarked as follows:
The Registrar should . . . not have paid out the bail money to anyone w hose name did not appear on the bail receipt as the depositor.
Section 69(2) is quite clear on this. The plaintiff does not recognise any cession of bail money and there are no doubt good reasons
for this rule. The purported transfer of the right to receive payment of the bail money recorded on the back of the bail receipt is, of
course, nothing but a cession. Mr Knoesen should not have made out the cheque to the defendant. Payment to him w as contrary to
the provisions of the statute. It w as unlaw ful.
Although the description of the endorsement as a cession was questioned by the Supreme Court of Appeal, viewing the
event as the de facto refund of the bail money to the depositor, it nevertheless endorsed the above-quoted import of s
69(2) of the Act.
The Act also provides for the remission of the whole or any part of bail money which was forfeited to the state under s 66
or s 67 of the Act. [110] This may be done by the Minister of Justice or his delegate, or by the court. Such remission may be
effected in the absolute discretion of the Minister, or the court, and may not be claimed as of right. [111] The circumstances
in which forfeited bail money will be refunded depend on the facts of each case: [112] the depositor should make out a case
that forfeiture was unreasonable, [113] and that he had no control over the circumstances under which forfeiture occurred.
In this regard a depositor other than the accused should show that he took reasonable steps to secure the accused's
attendance at his trial. If the accused's default was due to a reasonable misunderstanding, remission will be favourably
considered; but if he intended to abscond, he will not be given the benefit of a sympathetic consideration of his request for
remission of the bail money. [114] In all cases the costs attached to the accused's re-arrest will probably be set off against
the amount of bail forfeited. The discretion will also be exercised with due regard to the possible illiteracy of the depositor.
The discretion also encompasses money paid and forfeited by sureties in terms of the provisions of the Act. It may often
happen that a surety was at all times bona fide and kept a cautious eye over the accused, only to be let down when the
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trial date dawned. In such cases it would be particularly desirable that the Minister or court should exercise the discretion in
favour of returning the surety's money to him. [115]
[1] Sections 58-60 of the Act.
[4] Sections 66 and 67 of the Act.
[7] Para 10.9.
[9] Section 67(1)(a)(i) of the Act.
[10] Section 67(1)(a)(ii) of the Act.
[12] See, generally, Kruger 1940 (2) PH F159 (O); Ex parte Estate Phillips 1958 (1) SA 803 (N); Cassim v Regional Magistrate, Pretoria 1962 (2) SA
440 (T); S v Zibula 1968 (2) SA 596 (E); Zondi 1974 (1) PH H10 (N); S v Sibuya 1979 (3) SA 192 (T).
[17] Ibid.
[18] S v Sibuya (above).
[22] Section 67(2)(c) of the Act.
[23] 1958 (1) SA 803 (N) 807F-808B.
[24] At 808B.
[25] (41/918/2011) [2012] ZAGPJHC 38 (23 March 2012) (unreported elsewhere at the time of writing).
[26] Above.
[27] At para [13].
[28] At paras [8]-[10].
[29] See, for example, Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A); Duncan t/a San Sales v Herbor Investments (Pty) Ltd 1974 (2) SA
214 (T).
[30] Cassim v Regional Magistrate, Pretoria (above); Knight v Van Tonder 1962 (3) SA 719 (R); Ayob v Minister of Justice 1963 (1) SA 775 (T).
[31] C f S v Zibula (above).
[32] See, for example, Magistrates' C ourts Act 32 of 1944, rule 49(11); Vermeulen v Vermeulen 1940 OPD 25.
[33] See the analogous situation provided for by rules 49(1) (rescission of orders made in a person's absence) and 60(5) (extension of time in which
to obtain rescission of such orders) of the Magistrates' C ourts Act.
[34] Section 67(2)(a) and (c) of the Act.
[35] S v Baleka 1986 (1) SA 361 (T).
[36] Afrikaanse Pers Bpk v Neser 1948 (2) SA 295 (C ); S v Makoula 1978 (4) SA 763 (SWA).
[37] Section 118 of the Act; S v Boorman 1981 (2) SA 852 (C ).
[38] Sections 275, 297(9)(b) of the Act.
[39] S v Sullivan 1969 (2) SA 385 (A).
[40] S v Gwala 1969 (2) SA 227 (N); Lansdown & C ampbell South African Criminal Law and Procedure vol v (1982) 490. C ontra Mahlanga 1959 (2)
SA 220 (T).
[42] Ibid.
[43] Ibid.
[48] Ibid.
[49] C f Cassim v Regional Magistrate, Pretoria (above).
[50] Subject to the provisions of ss 114, 115A, 116, 117, 118 and C hapter 19 of the Act. See also para 12.4 above.
[51] Para 12.8.
[55] Section 66(1) and (2) of the Act.
[56] Ibid. See also para 12.11.
[57] S v Mabuza 1996 (2) SAC R 239 (T) 241f.
[59] Emphasis added. See Cassim v Regional Magistrate, Pretoria (above); S v Casker 1971 (4) SA 504 (N).
[60] Gillespie 1960 (1) PH H56 (W); De Jager v Attorney-General, Natal 1967 (4) SA 143 (D); S v Casker (above); Pillay v Regional Magistrate,
Pretoria 1976 (4) SA 290 (T).
[61] Jack v Vermeulen 1979 (1) SA 659 (C ).
[65] It is to be doubted whether this represents a healthy state of affairs. It is submitted that bail conditions should be open to amendment at this
stage of the trial, or that bail should lapse.
[66] See paras 12.14, 12.15.
[68] C f Maqungu v Assistant Magistrate, Whittlesea 1977 (2) SA 359 (E).
[71] C f the maxim 'expressio unius, exclusio alterius'.
[72] 2005 (2) SAC R 14 (C ).
[73] The section therefore excludes judges and regional magistrates—see s 1 of the Act.
[74] Thus, viva voce evidence is incompetent.
[75] Section 68(2) of the Act. 'Reason to believe' entails, first, a belief genuinely held, and secondly, one that is reasonable. C f Hurley v Minister of
Law and Order 1985 (4) SA 709 (D).
[76] Ibid. C f Jack v Vermeulen (above). A 'genuine belief' is not the same as being 'satisfied'; there must be evidence that the accused might defeat
the ends of justice—see Metal and Allied Workers Union v Castell 1985 (2) SA 280 (D). Quaere whether the standard is set too low in view of s 60(4).
[77] Sachs v Minister of Justice 1933 TPD 141; 1934 AD 11; Arsenis 1942 SR 89; Hooper v Superintendent, Johannesburg Gaol 1958 (2) SA 157 (W).
See also Brits Town Council v Pienaar 1949 (1) SA 1018 (T). The magistrate need not be 'convinced', but must be persuaded that a 'fair probability'
exists—Afrikaanse Pers Bpk v Neser (above); S v Makoula (above) 1978 (4) SA 763 (SWA).
[78] Hurley v Minister of Law and Order (above). The reasonableness of the peace officer's belief is judged objectively, for it is not enough for him to
believe that he 'has reason to believe'—Hurley's (above) 717; Liversidge v Anderson [1942] AC 206 (HL) (the minority judgment); London Estates (Pty)
Ltd v Nair 1957 (3) SA 591 (D); Sigaba v Minister of Defence and Police 1980 (3) SA 535 (Tk); Ndabeni v Minister of Law and Order 1984 (3) SA 500
(D). See Nienaber 1983 THRHR 211.
[79] When Act 75 of 1995 came into operation.
[80] By Act 85 of 1997.
[81] Section 68(1)(f) of the Act.
[82] Section 68(1)(g) of the Act.
[83] 77 C C C (3d) 91 (SC C ).
[84] Headnote, at 92d-g. See also R v Pearson (1992) 77 C C C (3d) 124 (SC C ).
[85] As amended by Act 85 of 1997.
[86] Section 68(1) of the Act, as amended by Act 85 of 1997.
[87] C f the bizarre sequence of events which, it is submitted, resulted in a gross failure of justice bordering on judicial malice, in Terry v Botes 2003
(1) SAC R 206 (C ).
[88] 2005 (2) SAC R 14 (C ) 20b-d.
[89] The magistrate need not be 'convinced', but must be persuaded that a 'fair probability' exists—Afrikaanse Pers Bpk v Neser (above); S v
Makoula (above).
[90] Above, 20c-d.
[91] Para 12.3.
[93] Section 67(2)(c) of the Act.
[94] Section 66(3) of the Act. However, this will only occur if the accused was at fault—cf Kruger 1940 (2) PH F159 (O); Cassim (above).
[95] De Jager (above). See also Ferreira Strafproses in die Laer Howe (1979) 211.
[97] Para 10.26.
[98] For instance in R v McInnes 1946 WLD 386; S v Casker (above).
[99] See Pillay v Regional Magistrate, Pretoria (above); Jack v Vermeulen (above); Sebe v Magistrate, Zwelitsha 1984 (3) SA 885 (C k); Oehl
(above).
[100] C h 15.
[101] Para 6.9.
[103] If bail is extended—s 58 of the Act.
[104] Withdrawal of the charge also causes bail to lapse.
[105] See para 12.19.
[107] Surely the section means the depositor's interest in the bail money.
[108] Apart from the fact that this practice has led to abuse in the past, it also reduced the inducement which is offered the accused to stand trial, for
his interest in the bail money thus becomes remote.
[109] 1995 (1) SAC R 292 (A) 296c.
[110] Section 70 of the Act. C ancellation of bail under s 68 of the Act does not lead to forfeiture of the bail money.
[111] Erasmus 1959 (2) PH H172 (C ).
[112] The criteria whereby the executive judges the merits of representations for remission of bail money are contained in Department of Justice
C ode: Kriminele en Siviele Aangeleenthede Schedule G.
[113] Ex parte Estate Phillips (above).
[114] Erasmus (above).
[115] C f Ex parte Goldstein 1911 EDL 404; Erasmus (above).
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13
Alternatives to bail
13.1 Introduction
In a society such as ours, where the vast majority of persons passing through the criminal justice system are of limited
means and unlikely to afford bail without experiencing hardship, it is imperative that the individual's burden is eased and
that the alarming overcrowding of detention centres, where accused persons await their trials, be reduced. It has been
said [1] that before conclusion of his trial the accused's only crime is his financial position, and that his family is likely to
suffer economically as well as emotionally, facing the prospect of having to bear the scars of embarrassment and
humiliation, possibly for the rest of their lives. There is also an enormous financial burden on the public to fund the
establishment and running of detention centres. Such adverse features of the bail system must be eradicated. This can only
be done, it is submitted, by making bail itself more freely available and by fixing bail amounts at levels that make it truly
accessible to the accused; and by implementing suitable alternatives to bail. A number of such alternatives are provided for
by the Act, but are either circumscribed or employed too infrequently. Others deserve investigation and possible
incorporation into our criminal justice system. What follows is a brief discussion of statutory alternatives to bail, and of a
few other alternatives which may be worthy of consideration as practical options within the peculiar society in which they will
have to be applied.
13.2 Release on summons

Section 54 of the Act provides for the accused's attendance at court on the strength of a summons issued and served
upon him. Such a summons must contain particulars of the charge and state the time and place at which the accused must
appear on an appointed date. The section stipulates that, should the accused fail to appear, he may be arrested, convicted
and sentenced for such failure, which is accorded the status of an offence. [2] It is clear that summons procedure is suitable
only where the accused's address is known to the police. On the other hand, there seems to be little point in arresting a
person whose address is known, instead of serving a summons upon him. Where the matter is not urgent and the accused
has a fixed abode, it is submitted, summons procedure is desirable. In Tsose v Minister of Justice [3] Schreiner JA remarked
that
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arrest where summons would have sufficed attracts disapproval, and that summons is desirable where the accused's
address is known to the police. In Birch v Johannesburg City Council [4] it was stressed that arrest is a serious matter that
ought to be reserved for serious cases.
It is submitted that greater police use of the summons is called for in South Africa. In many instances the police will be
able to ascertain the stability of the accused's background by means of a quick check, which can even be made
telephonically. If that check reveals that the accused has strong community ties such as a local residence, family and
employment, there is a cogent reason why summons procedure, rather than arrest, is indicated. [5]
13.3 Release on warning

In terms of s 72 of the Act the accused may be released on warning in lieu of bail. The section is intended for those offences
that are of a less serious nature or in respect of which the risk of abscondment or interference with the course of justice is
minimal. [6] It seems that the section seeks to reflect the practice previously governed by s 108 of the former Act, which
allowed for the release on warning of juveniles, and s 310 of that Act, which provided for persons to be warned by the
police to appear in court. A practice of releasing adult accused on warning has developed quite spontaneously in the lower
courts, without previous statutory authority for it. [7] Section 72(1) of the Act provides for release on warning of any
accused by police officials who possess the power to grant bail under s 59, and imposes the same restrictions as are found
in s 59 regarding offences in respect of which release of the accused shall not be competent. Thus, for example, the
accused may not be released on warning by a police official if the charge relates to an offence referred to in Parts II and III
of Schedule 2 to the Act. The effect of s 72(1) is that the accused is released from custody and simply warned to appear at
a specified time and place on a specified date. [8] A juvenile may further be placed in the care of another person in whose
custody he is, in which case such person is warned to ensure the accused's appearance. [9] A court is competent to couple
release on warning with any of the conditions listed in s 62.
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Two other sections make provision for the accused's release on warning. Section 55(2) provides for the accused who
failed to appear on summons to be arrested and brought before court on a warrant of arrest authorised by the court. A
proviso permits the person who executes the warrant to release the accused on warning to appear before court if it appears
to that person that the accused will heed such warning. [10] If it appears that the accused has a valid defence to the charge
that he failed to appear on summons, the person executing the warrant must release the accused on warning. [11] The
provisions of s 72 are then automatically brought into operation. In terms of s 56 a peace officer may in certain cases,
instead of arresting the accused for any offence or causing him to be summonsed to appear, issue him with a written notice
to appear in court. The effect of such notice is that an accused in custody is released forthwith. [12] Where the accused has
failed to appear in court on written notice, the provisions of s 55(2) are automatically applied, and his further release on
warning may similarly be effected. [13]
A police official who releases the accused on warning shall complete and hand to the accused (or, where applicable, to his
custodian) a written notice on which details of the offence and the date, time and place of his court appearance are
entered. [14] A court that releases the accused on warning need only record the details of the warning. [15]
Although purporting to relate to 'bail', s 60(2B) of the Act provides that if, after a court's inquiry into the accused's ability
to pay bail, it appears that he is not able to do so. He should be released on 'bail' without being obliged to deposit money.
This, of course, is nothing other than release on warning, and may be accompanied by conditions. Curiously, there seems to
be no criminal sanction similar to that provided for by s 72(2)(a) read with s 72(4) of the Act in respect of the accused's
failure to appear or to comply with a condition when released on warning in terms of s 72. [16]
13.4 Failure to appear on warning or comply with conditions

If the accused has been released on warning and thereafter fails to appear in court at the appointed time, or fails to comply
with any condition imposed in terms of s 62 of the Act, he may be arrested and brought before the court, which may
summarily enquire into his failure. [17] If the accused fails to satisfy the court that his non-appearance was not due to his
fault, he may be summarily sentenced [18] for committing the offence created by s 72(2)(a). The court is obliged to explain
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the procedure to the accused and to give him sufficient opportunity to discharge the onus, [19] which, it is submitted, may
be no more than a burden to provide an explanation rather than a burden of proof. It is submitted that time for preparation
and for engaging a legal representative must be given to the accused, as he would manifestly be in the position of an
accused and thus entitled to the procedural rights extended to accused persons by s 35(3) of the Constitution. A similar
offence is created by s 72(2)(b) in respect of a juvenile accused's custodian, and such custodian may be similarly arrested
and sentenced. [20] It must be noted that the section does not make provision for adversary proceedings: if the accused (or
his custodian where he is a juvenile) fails there and then to discharge the onus of proving, on a balance of probabilities, that
his non-appearance was unaccompanied by fault on his part, he may be sentenced. Unlike similar penal provisions in ss 55,
67A and 170, the accused or his custodian is not sentenced after a formal conviction.
In addition to such sentence the 1997 amendment of the Act [21] provides that the court may apply the provisions of s
68(1) and (2) and cancel the accused's release on warning.
13.5 Release on warning distinguished from bail

The fundamental distinction between release on warning and bail is that in the former case the accused is released on his
mere promise to stand his trial, and no money, guarantee or other form of security is required to supplement his promise.
There are also several other statutory respects in which these two systems of release differ. First, although police officials
under s 72 of the Act have the same powers and are subject to the same restrictions regarding bail applicable in terms of s
59, s 72 places a restriction on the courts which is not encountered in s 60, the corresponding bail section. Whereas a
competent court may grant bail in terms of s 60, regardless of the offence with which the accused is charged, s 72
proscribes such power by excluding the court's jurisdiction to release the accused on warning where he is charged with an
offence referred to in the Schedule to the Internal Security Act 1950. Secondly, s 72 introduces a procedure whereby a
juvenile accused may, in lieu of bail and instead of being referred to a place of safety in terms of s 71, be placed in the
custody of another person. Such procedure is not encountered in the bail provisions. Thirdly, s 307 stipulates that the
accused may be released on bail pending appeal or review of his case. [22] There is no provision in the Act for the accused to
be released on warning in such cases. [23]
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In the fourth place, where the accused has provided sureties in lieu of cash bail, sureties suffer no harm other than
forfeiture of the amount of bail. The person into whose custody the accused has been released, however, may be sentenced
for committing a criminal offence if the accused fails to stand his trial. Finally, s 59 allows bail to be granted by a police
official who holds the rank of at least non-commissioned officer. This qualification presumably conveys an intention that
matters of bail should be handled by responsible and experienced officials. Paradoxically, the more drastic power of releasing
the same accused on warning without the security inherent in bail is given to any person who executes a warrant of arrest
in terms of s 55(2), and to any peace officer in terms of s 56(2) and (5).
13.6 Committal to a place of safety

A juvenile accused may be released on bail by a police official in terms of s 59, by the attorney-general or his authorised
prosecutor in terms of s 59A, or by a court in terms of s 60. It is competent, however, for such police official or court to
release the accused from formal custody by placing him in the care of a place of safety. The effect of this provision is not to
return the accused's freedom to him, for that freedom continues to be impaired by his committal to the place of safety. The
advantage of lodging the accused in a place of safety is that he is no longer required to share a cell with adults, some of
whom may be hardened criminals. Thus the accused is removed from the detrimental environment of detention centres
intended for adults, and avoids exposure to the harsh realities of life in a prison cell.
13.7 Supervised release

It is submitted that the system whereby a juvenile accused may be released into the custody of another person, may be
profitably extended to include adults. In cases where the adult accused may not qualify to be released on warning, and may
not be able to afford any bail, his release into the custody of another person may yet ensure that he stands his trial. Such a
custodian may be a family member, a clergyman, a community worker, an employer, etc. The only criterion should be
whether in the particular case the proposed custodian is likely to exercise sufficient influence over the accused to cause him
to return to stand trial. It should also be possible for conditions to be added to such release. [24] It has been observed that
bail sureties under the Act do not stand in for
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personally ensuring the accused's appearance in court. However, under the former Act the surety did in fact undertake to
ensure that the accused stands his trial. Releasing the accused into the custody of a person who gives such an undertaking
will not place the state at inordinate risk, and seems an acceptable alternative to bail.
[1] Wice Freedom for Sale (1974) 97.
[3] 1951 (3) SA 10 (A) 17.
[4] 1949 (1) SA 231 (SWA) 239. See also the remarks of Van den Heever J in Macu v Du Toit 1982 (1) SA 272 (C ).
[5] See Kerper Introduction to the Criminal Justice System (1979) 271; Lewis et al An Introduction to the Courts and Judicial Process (1978) 159;
Wice 108.
[6] Ferreira Strafproses in die Laer Howe (1979) 220. See also Kerper 272; Lewis et al 154. Release on warning is a highly successful alternative to
bail in the United States of America. Studies of aspects of the well-known Manhattan Bail Project have shown that bail is not a particularly good system
of securing the accused's attendance at court. Of all persons released prior to their trials, more accused released on warning returned to stand trial
than was the case with accused released on bail—see Freed & Wald Bail in the United States (1964) 59-64.
[7] Ferreira 220. See also Scholtemeyer 1964 THRHR 219; S v O'Neill 1967 (4) SA 84 (SWA).
[9] This provision was formerly contained in s 72(1)(b) of the Act. However, this sub-section was deleted by Act 75 of 2008 and effectively replaced
by s 4(2) of the C hild Justice Act 2008. Both the juvenile and his carer are bound by the terms of the release: S v Tokota 1997 (2) SAC R 369 (E).
[16] See para 13.4.
[17] Section 72(4) of the Act, introduced in its present form by Act 33 of 1986, s 7(e).
[18] The sentence which it is competent to impose is a fine (or imprisonment for three months).
[19] S v Jakada 1990 (2) SAC R 34 (C k).
[21] Section 72A of the Act, introduced by Act 85 of 1997, s 7.
[22] Sections 307 and 308 of the Act.
[23] See S v Mpetha and Others C PD case no 3/81, 30 May 1985 (unreported), where the accused was released on bail of R1 pending the outcome
of his appeal. It seems obvious that the otherwise ludicrously inadequate amount of bail was fixed to circumvent the omission of the Act to provide for
a convicted person to be released on warning pending appeal. See also the remarks of Scholtemeyer 1964 THRHR 219 220. In Leo C PD case no
297/84, 19 November 1985 (unreported) the two accused had been sentenced to death but, on leading new evidence some considerable time after
conviction, persuaded the court to grant leave to appeal. One of the accused was then released on warning, pending the outcome of the appeal. While
it is likely that the trial court, in the light of the new evidence led, considered that accused to be innocent, it is nevertheless submitted that the court
was not competent to waive bail pending appeal.
[24] See Kerper 272; Wice 111-12.
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14
Release pending appeal, review and petition
14.1 Release pending appeal absolutely conditional

In terms of s 309(4)(b) of the Act, which incorporates the provisions of s 307, the operation of any sentence of
imprisonment imposed by a trial court is suspended only when the trial court releases the person convicted on bail. [1]
Stated differently: the convicted accused must commence serving his sentence pending appeal, unless he has been granted
bail. It follows that the operation of any sentence cannot be suspended by a mere noting of an appeal, [2] and that a court
is not empowered to release convicted persons (who were sentenced to imprisonment) on terms other than on bail. A
magistrate may thus, in terms of s 307 of the Act, set bail pending appeal against his decision. Similarly, by the introduction
of s 309(5), the legislature has expressly given the High Court the power to set bail pending appeal against a judgment
given by it on appeal. It appears that the Supreme Court of Appeal, in addition, has an inherent jurisdiction to grant bail to
an appellant in a criminal case pending its decision on appeal. [3]
14.2 Release pending review absolutely conditional

The release of a sentenced accused on bail pending review is governed by s 307 of the Act. Again, release pending review is
absolutely conditional on the payment of bail. The discussion in para 14.1 above with reference to bail pending appeal is
equally applicable to release pending review, save for the exceptional release of the convicted accused on warning where he
has been sentenced to correctional supervision in terms of s 276(1)(h) of the Act and the trial record has been forwarded to
the High Court on automatic review. It must be borne in mind that only a lower court's proceedings may be reviewed, and
bail pending review accordingly concerns only such reviews.
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14.3 Release on warning pending appeal or review not competent

No person sentenced to undergo imprisonment may be relieved of his obligation to commence serving his sentence pending
appeal or review unless he has been granted bail. [4] No provision is made for sentenced persons to be released on warning.
Because of the inability of a trial court to release a convicted person on warning pending appeal, the trial judge in S v
Mpetha and Others [5] fixed bail pending appeal in the sum of R1. In Leo [6] the accused had presented new evidence to the
trial court some time after the passing of sentence. In granting an application for leave to appeal in the light of the new
evidence, the trial judge released one of the accused on warning pending appeal.
It is submitted that the amount of bail fixed in S v Mpetha and Others makes a mockery of the bail process whereby an
accused's attendance is sought to be secured by requiring him to deposit a sufficiently high amount of money. It is further
submitted that the order in Leo was incompetent, as no provision is made for it in the Act. However, both cases are the
result of the unnecessarily strict provisions of the Act: if the Act were to be amended in order to allow trial courts to release
convicted persons (pending appeal) on terms considered appropriate by such courts, no need would arise for such
expediency orders to be made in breach of the Act's provisions or of the sprit of the bail process.
Where the sentence is one of correctional supervision in terms of s 276(1)(h), subject to automatic review, the sentenced
accused may be relieved of his obligation to commence 'serving' his sentence of house arrest, either through bail being
granted [7] or through his release on warning (which, peremptorily, will be coupled with conditions). [8]
14.4 Bail pending appeal or review: principles

The primary consideration in an application for bail pending appeal or review is whether the accused will serve his sentence if
released on bail and should his appeal or review fail; the risks of the accused interfering with the investigation or influencing
witnesses will have fallen away. The court will naturally take into account the increased risk of abscondment in view of the
fact that the accused has been convicted and sentenced to a term of imprisonment, and is not merely awaiting the outcome
of his trial. [9] Also, a stark change of circumstances is the fact that the presumption of innocence has, by this stage,
ceased operating in the accused's favour. Thus, the severity of the sentence imposed will be a decisive factor in the court's
exercise of its discretion whether or not to grant bail and as
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to the amount of bail to be considered, [10] for the notional temptation to abscond which confronts every accused person
becomes a real consideration once it is known what the accused's punishment entails. Thus, also, an accused who was
granted nominal bail during his trial may be required to post a substantial amount of bail following conviction and sentence.
In considering a bail application at this stage of the proceedings the trial court should carefully weigh the likelihood of the
accused considering it worthwhile to abscond rather than serve his sentence. It follows that bail will more readily be refused
where the sentence imposed is a long term of imprisonment; alternatively, if granted, bail in such cases will generally be
fixed in a high amount, for the purpose of bail at this stage of the proceedings is to ensure that the accused will serve his
sentence should his appeal or review application fail. An amount of bail will be fixed that will reduce the risk of abscondment:
it will induce the accused to return to serve his sentence rather than risk forfeiture of such a large sum of money.
In view of the above principles, it is submitted that those considerations which militated against a court lightly granting
bail to an accused awaiting trial on what was formerly a capital charge [11] will be magnified many times over once the
accused has been convicted of such an offence.
It is submitted that the offences listed and described in Schedule 6 to the Act (introduced in 1998 by the implementation
of Act 85 of 1997) largely correspond to the former capital offences and will for the greater part justify sentences of lengthy
or even life imprisonment. The views expressed with regard to bail in respect of former capital offences may therefore be
[12]
applied with almost equal force to Schedule 6 offences. [12]
While this principle does not mean that bail must always be refused in Schedule 6 cases, and that no accused awaiting
trial on, or convicted of, a Schedule 6 charge should be granted bail, [13] it is submitted that the principle does mean that in
all but the most exceptional cases [14] bail will be refused pending appeal or review once the accused has been convicted and
sentenced in respect of a Schedule 6 offence. Authority in this regard is to the effect that,
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following a conviction of an offence listed in Schedule 6, it is incumbent on the applicant for bail pending appeal to prove
that exceptional circumstances exist which permit his release on bail. This issue came under consideration in Ngqeleni [15]
where Hole AJ said the following in dismissing an appeal against a magistrate's refusal of bail pending appeal:
[8] . . . Does a person convicted of a Schedule 6 offence not have to persuade the court that now that he is convicted exceptional
circumstances exist to permit his release on bail pending appeal? Is the simple fact that the person has been convicted of a Schedule
6 offence not one of the considerations in deciding w hether or not to grant or extend bail? I could not find any authority on these
questions. How ever Van der Berg Bail: A Practitioner's Guide at 168 seems to think that follow ing a conviction of a Schedule 6 offence
bail pending appeal should be granted only in the most exceptional cases. I agree w ith the view s of the learned author. In my view a
person convicted of a Schedule 6 offence carries the same, if not a heavier, burden as w as borne by his yet unconvicted counterpart
to place evidence before the court that exceptional circumstances exist that permit his release pending appeal.
[9] I find it difficult therefore to comprehend how it occurs that before conviction an accused person charged w ith a Schedule 6
offence has to lead evidence to establish exceptional circumstances but after he is convicted a practice has grow n that counsel can
from the Bar seek to secure his release pending appeal w ith little if any evidence placed before the trial court.
It is clear from this judgment that in attempting to discharge the onus of proving exceptional circumstances the accused is
required to adduce evidence, and cannot rely simply on his counsel's submissions from the bar. In S v Scott-Crossley, [16]
an appeal against the trial court's refusal of bail pending appeal against conviction, evidence had been adduced by means of
affidavits, but was found wanting. The court held that the evidence adduced must be sufficient to show the existence of
exceptional circumstances justifying the accused's release pending appeal:
[3] In S v Bruintjies 2003 (2) SACR 575 (SCA) this Court held (at para [5]) that a person w ho has been found guilty of a Schedule 6
offence and been sentenced cannot claim the benefit of a lighter test than that imposed in the case of unconvicted persons by s
60(11).
[4] It is thus clear that the appellant bore the onus to persuade this Court that exceptional circumstances exist which in the interests of
justice permit his release on bail. (Emphasis added.)
It is therefore somewhat surprising to note that in Kramer, [17] the accused, who had been sentenced to death for murder
(assuredly the equivalent of murder under Schedule 6 of the Act), was apparently granted bail pending appeal on the
ground that
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. . . during the emotional situation w hich prevailed immediately after sentence w as imposed, it w as requested that the accused
Kramer be released on bail pending appeal and the Prosecutor raised no objection. (Emphasis added; my translation.)
It is fully understandable that the accused and his family would have been emotional following the passing of the death
sentence; what is less acceptable, however, is the apparent suggestion that state counsel failed to oppose bail on account
of the emotional situation and, worst of all, that the learned judge granted bail because of the emotional situation and/or
because the application was not opposed by the state. Not surprisingly, the state had second thoughts and subsequently
requested that bail be withdrawn, which request the learned judge refused. [18]
It is also important to bear in mind that, once the accused has been convicted, a powerful consideration operating in his
favour whilst awaiting trial, namely the presumption of innocence, will have fallen away. He thus has an uphill battle to secure
his release on bail appeal or review, more so in the case of conviction of charges falling under Schedule 6 to the Act. At the
same time, however, courts should be mindful of the systemic difficulties experienced by appellants and registrars alike in
having proceedings transcribed and submitted to the higher court within a reasonable time, which inevitably lead to hardship
for persons who have not been released on bail pending appeal. This unsatisfactory situation has been created largely
through the introduction into the Act of s 316(10)(c), which requires the entire trial court record to be lodged with the
Supreme Court of Appeal simultaneously with an application for leave to appeal. In S v S [19] the Supreme Court of Appeal
had cause to remark on the situation:
[7] The problem w ith appeal records as set out above is not peculiar to the appellant. In another appeal, w hich w as heard on the
same day and w as also a Board matter, the record w as filed 30 months late (Kruger v S SCA case 506/11). The problem has also been
exacerbated by the recently introduced s 316(10)(c) of the Criminal Procedure Act 51 of 1977, which was adopted without consulting this
Court. It requires that the record of the full proceedings must be placed before this Court before it may hear an application for leave to
appeal, even if not required for deciding the application. Unless the accused can pay for the record and the attorney can pursue the
matter, the experience in this Court is that registrars simply do not have the capacity to comply w ith the provision in good time. For
w ould-be appellants out on bail, it is heaven sent; those who are not out on bail have to suffer in purgatory while the wheels of justice
grind slowly, if at all. And petitions are piling up in the registrar's office, aw aiting records from the high courts. (Emphasis added.)
14.5 Bail pending appeal or review: significance of prospects of success

The mere fact that an accused who has been sentenced to undergo imprisonment has noted an appeal or has been granted
leave to appeal does not
Page 219
automatically suspend the operation of his sentence, [20] nor does it entitle him to bail as of right. [21] However, the
prospects of success on appeal play an important role in the determination of whether or not bail ought to be granted and,
if granted, what amount ought to be fixed. Thus, in S v De Abreu [22] the court remarked that
the prospects of success on appeal also form a factor to be taken into account in an appeal against the refusal of bail [pending
appeal]. If, for example, the view of this court should be that the appeal . . . is hopeless, this court w ould probably be reluctant to
alter a judgment refusing bail. [23]
In Williams [24] the court elaborated:
Different considerations do, of course, arise in granting bail after conviction from those relevant in the granting of bail pending trial.
On the authorities that I have been able to find it seems that it is putting it too highly to say that before bail can be granted to an
applicant on appeal against conviction there must alw ays be a reasonable prospect of success on appeal. On the other hand even
w here there is a reasonable prospect of success on appeal bail may be refused in serious cases notw ithstanding that there is little
danger of an applicant absconding. Such cases as R v Milne and Erleigh (4) 1950 (4) SA 601 (W ) and R v Mthembu 1961 (3) SA 468 (D)
stress the discretion that lies w ith the Judge and indicate that the proper approach should be tow ards allow ing liberty to persons
w here that can be done w ithout any danger to the administration of justice. In my view , to apply this test properly it is necessary to
put in the balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the tw o factors are
interconnected because the less likely the prospects of success are the more inducement there is on an applicant to abscond. In
every case w here bail after conviction is sought the onus is on the applicant to show w hy justice requires that he should be granted
bail. [25]
In both S v De Abreu and Williams the appeal was directed against conviction. In S v Beer [26] the accused appealed against
an effective prison term of three years, and was refused bail pending appeal. On appeal against refusal of bail Smalberger J
observed:
In my view w here, as in the present case, it is a matter of bail pending appeal against sentence only, one of the decisive principles is
w hether there are reasonable prospects of success on
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appeal, ie w hether there are reasonable prospects that a sentence other than imprisonment [sic] w ill be reduced to such an extent
that the accused w ill be prejudiced if he w ere to be expected to commence serving his sentence pending appeal, as any reduced
sentence w ill have expired before the appeal had been finalised. The absence of such reasonable prospects w ould justify the refusal
of bail. Although the personal freedom of the individual is alw ays an important consideration, w here a person does not challenge his
conviction the healthy and effective administration of justice requires the speedy serving of his sentence, and no logical, juridical or
moral reasons exist w hy the execution of his sentence should be delayed if an appeal against sentence has no reasonable prospects
of success. (Cf R v Fourie 1948 (3) SA 548 (T) at 549.) According to general principles the onus of proving reasonable prospects of
success on appeal w ould rest on the appellant. (My translation)
In subsequent cases, however, it was held that the dictum in Beer should be applied with circumspection and care, and only
in clear-cut cases, [27] and that it was in fact sufficient that the appeal was 'arguable and not manifestly doomed to
failure'. [28]
It is important to bear in mind the different tests traditionally applied by our courts when considering bail pending appeal,
on the one hand, and leave to appeal, on the other. Thus, before the advent of the amendments to the Act in 1995 and
1997, which introduced a more stringent and crime-control oriented bail regime, the test for bail pending appeal was as
described in cases such as S v De Abreu, [29] Williams, [30] and S v Anderson. [31] This test required no more than an
'arguable' case on appeal, one which was not 'manifestly doomed to failure'. This, with respect, is a reasonable threshold
and indeed not one that is difficult to cross. While the same test may conceivably continue to apply in respect of bail
pending appeal against conviction of charges not included under Schedule 6 to the Act, the bar is undoubtedly raised when
it comes to conviction of charges falling within the schedule, as was demonstrated in cases such as S v Bruintjies, [32]
Ngqeleni [33] and S v Scott-Crossley. [34] At the same time, the test applicable to applications for leave to appeal is simply
whether or not reasonable prospects of success on appeal may be said to exist (or, put differently, whether reasonable
prospects existed of another court finding differently). It will immediately be seen that this test has a higher threshold than
the arguability test applied in applications for bail pending appeal against conviction of charges not falling under Schedule 6.
What does this distinction hold when bail is sought
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pending appeal, where Schedule 6 applies, and where leave to appeal has been granted? The question was considered in S v
Bruintjies: [35]
The prospect of success may be such [an exceptional] circumstance, particularly if the conviction is demonstrably suspect. It may,
how ever, be insufficient to surmount the threshold if, for example, there are other facts w hich persuade the court that society w ill
probably be endangered by the appellant's release or there is clear evidence of an intention to avoid the grasp of the law . The court
w ill also take into account the increased risk of abscondment w hich may attach to a convicted person w ho faces the know n prospect
of a long sentence. Such matters, together w ith all other negative factors, w ill be cast into the scale w ith factors favourable to the
accused, such as stable home and w ork circumstances, strict adherence to bail conditions over a long period, a previously clear record
and so on. If, upon an overall assessment, the court is satisfied that circumstances sufficiently out of the ordinary to be deemed
exceptional have been established by the appellant and w hich, consistent w ith the interests of justice, w arrant his release, the
appellant must be granted bail.
And in S v Scott-Crossley [36] reference to S v Bruintjies was made with approval when the SCA held:
[5] To discharge the onus the appellant gave no viva voce evidence but relied on affidavits deposed to by himself, his w ife and his
attorney. It appears therefrom that the most important factor relied upon is the fact that the Supreme Court of Appeal has granted
leave to appeal against his conviction. It is the appellant's case that he therefore has reasonable prospects of success w hich, in
cases not covered by s 60(11), is an important consideration in favour of the granting of bail: see, for example, R v Mthembu 1961 (3)
SA 468 (D) at 471A-D; S v Anderson 1991 (1) SACR 525 (C) at 527e-g; S v Hudson 1996 (1) SACR 431 (W ) at 434b-d; S v De Villiers en
'n Ander 1999 (1) SACR 297 (O) at 310c; S v Rawat 1999 (2) SACR 398 (W ) at 401f-g; and S v Mabapa 2003 (2) SACR 579 (T) at 588 in
para [17].
[6] It is important to note that the majority of cases mentioned in the preceding paragraph w ere decided before the advent of the
new bail dispensation ushered in by the Criminal Procedure Second Amendment Act 85 of 1997 and the Judicial Matters Amendment
Act 34 of 1998, the constitutionality of w hich is now settled (S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2)
SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771)). As a consequence of this legislation, the approach to bail pending appeal in
respect of certain serious offences has become less lenient and less liberty-orientated in the last decade. . . .
[7] The prospects of success do not in itself [sic] amount to exceptional circumstances as envisaged by the Act—the Court must
consider all relevant factors and determine w hether individually or cumulatively they constitute exceptional circumstances w hich w ould
justify his release (S v Bruintjies (supra)). In evaluating the prospects of success it is not the function of this Court to analyse the
evidence in the Court a quo in great detail. If the evidence is extensively analysed it w ould become a dress rehearsal for the appeal
to follow : cf S v Viljoen 2002 (2) SACR 550 (SCA) at 561g-i.
14.6 Bail pending appeal or review: onus of proof regarding prospects of success
It is submitted that no onus rests on a prospective appellant to prove that his appeal against conviction or sentence is likely
to succeed. Should it appear that,
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prima facie, his appeal will be arguable [37] and not manifestly doomed to failure, [38] he will have discharged the persuasive
burden with which he is notionally saddled. However, it should not be thought that the fact that the trial court has granted
leave to appeal (which implies that there are reasonable prospects of success on appeal) without more constitutes sufficient
ground for granting bail pending appeal: [39]
[13] I now revert to the appeal proper. An application for bail after conviction is regulated by s 321 of the Act. It provides that the
execution of the sentence of a superior court 'shall not be suspended' by reason of any appeal against a conviction unless the trial
court 'thinks it fit to order' that the accused be released on bail. This requires of a sentenced accused to apply for bail to the trial
court and to place the necessary facts before the court that w ould entitle an exercise of discretion in favour of the accused. Compare
S v Bruintjies 2002 (2) SACR 575 (SCA) para 8.
[14] Since an appeal requires leave to appeal w hich, in turn, implies that the fact that [sic] there are reasonable chances of success
on appeal, is on its ow n not sufficient to entitle a convicted person to bail pending an appeal . . . W hat is of more importance is [sic]
the seriousness of the crime, the risk of flight, real prospects of success on conviction, and real prospects that a non-custodial
sentence might be imposed.
[15] It is important to bear in mind that the decision w hether or not to grant bail is one entrusted to the trial judge because that is
the person best equipped to deal w ith the issue, having been steeped in the atmosphere of the case.
14.7 Lapse of bail granted pending appeal or review

If the accused who has been granted bail pending appeal or review is not present or represented when the matter is called
in the superior court, it is likely that the matter will be removed from the court roll. In such event, the accused may be taken
to have abandoned his appeal or review application, and may be required to commence serving his sentence, as was the
case in Govender, [40] for bail granted pending appeal or review will automatically have lapsed. [41]
In S v Kuthumela [42] the accused did not fail to prosecute his appeal, but requested a postponement thereof. The
attorney-general, on the other hand, requested that the matter be removed from the roll on account of the accused's
failure timeously to submit heads of argument. When the matter was indeed removed from the roll, the accused applied for
and was granted an extension of bail pending applications for leave to appeal and for condonation. The reasoning of the
court was based on time-honoured practice. [43]
Moreover, in S v Brand [44] the accused had filed his notice of appeal late, prompting the magistrate to rule that he lacked
the power to hear an application
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for bail pending appeal until such time as the High Court had condoned the accused's failure to observe the rules of court.
On appeal against the magistrate's refusal to hear the bail application, it was held that a notice of appeal which is filed late is
not a nullity; that the clerk of the court is not entitled to refuse to receive this notice; and that the magistrate is not entitled
to refuse to react to the notice and to refuse to hear a bail application.
14.8 Bail pending petition: introduction

Since the abolition of the procedure of petitioning the Chief Justice (who previously headed the Supreme Court of Appeal
but is now the officer presiding over the Constitutional Court), the appropriate procedure is that of application upon notice
of motion to the Supreme Court of Appeal. The procedure continues to be widely referred to as that of 'petition'. A similar
procedure introduced by s 309C of the Act in respect of prospective appeals from the lower courts retains the statutory
label of 'petition', although such applications are also made on notice of motion. For the sake of convenience (and old
habits) the term 'petition' is retained in the text. Applications for leave to appeal ('petitions') are competent where an
accused person has been convicted and sentenced by a lower court or superior court and leave to appeal to a higher court
has been refused by the trial court (in which case the petition is addressed to the relevant Judge President); [45] where a
High Court has confirmed a conviction or sentence on appeal from a lower court, and has refused leave to appeal to the
Supreme Court of Appeal (in which case the petition is addressed to the SCA); [46] and where a Full Bench has confirmed
the conviction or sentence imposed by a trial judge (in which event an application must be made to the Supreme Court of
Appeal for 'special leave to appeal'). [47] Applications may also be directed to the Constitutional Court, [48] on notice of
motion, for leave to appeal to it from the High Court or the Supreme Court of Appeal, on a constitutional point only. Lastly,
petitions may also be directed to the Minister in terms of s 327 of the Act. [49]
14.9 Petitioning the Supreme Court of Appeal

Section 321 of the Act makes provision for a superior court to grant bail pending an appeal or reservation of a question of
law. On the face of it, it would appear to follow that a superior court, which is limited as to its power to grant bail by the
provisions of the Act, would be powerless to consider bail outside the ambit of these provisions. [50]
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However, in Hlongwane [51] it was held that a superior court has an inherent common law power to control its own
judgments as well as those of lower courts within its area of jurisdiction; and that, in exercising such power, a superior
court may suspend the execution of its own sentences or those of a lower court within its jurisdiction pending the outcome
of a petition to the Supreme Court of Appeal and any subsequent appeal. It was further held that a superior court may
couple conditions, including a condition of payment of bail, to such suspension of a sentence. [52] In Human [53] it was held
that, notwithstanding the absence of statutory provision for the release of a convicted offender, sentenced to
imprisonment, on bail pending a petition to the Chief Justice (who, at the time, was the appropriate presiding officer), a
superior court was entitled to make use of its inherent common-law powers to release such an offender on bail pending the
outcome of a petition. Notwithstanding reservations regarding such 'inherent powers' having been expressed by the then
Appellate Division in Sefatsa v Attorney-General, Transvaal [54] and S v Absolom, [55] the approach adopted in S v
Hlongwane and S v Human has since found general favour. [56] It is submitted that the more liberal interpretation of the
High Court's jurisdiction is to be preferred, more so as the Constitution enjoins superior courts to interpret the common
law in accordance with the aims and spirit of the Constitution, [57] and grants superior courts the power to protect their
own process and to develop the common law. [58]
The High Court may also, in exercising its inherent jurisdiction to regulate and control its own proceedings, grant bail
pending petitioning of the Supreme Court of Appeal or the Constitutional Court for leave to appeal against a decision given
by it. As is described below (in the discussion of bail pending petitioning of the Judge President), [59] it is therefore not
necessary for the High Court to have granted leave to appeal before it is empowered to grant bail in anticipation of the
institution of appeal processes by either the accused or the state. Moreover, it falls within the High Court's inherent
jurisdiction to grant bail pending petitioning of the Supreme Court of Appeal [60] and the Constitutional Court, [61]
notwithstanding that a petition has not yet been filed or is not yet in existence. To prevent an abuse of the grant of bail in
such circumstances by indulging the freed accused indefinitely, it is customary for the
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court to include a bail condition putting the accused to terms as to the filing of his petition, failing which bail will ipso facto
lapse.
It is immaterial whether bail is sought pending a petition for leave to appeal against the decision of a single judge or a
Bench of two judges or, for that matter, pending special leave to appeal against the decision of a Full Bench of the High
Court: [62] in each instance bail pending petition is competent by virtue of the High Court's exercise of its inherent
jurisdiction.
The question has arisen whether an application for bail pending petition for leave to appeal against a decision of a Full
Bench may be heard by a single judge or by all three judges who constituted the said Bench; and, if the application may be
heard by a single judge, whether that judge must be one who participated in the Full Bench decision. It is submitted that
the crisp answer is that such bail applications may indeed be heard by a single judge, who need not be one who participated
in the Full Bench decision. Thus, in both Abader decisions [63] bail was granted by a single judge who had been uninvolved in
the preceding Full Bench appeal; and similarly (although concerning not an application for bail pending petition but rather
pending appeal against the decision of two judges), in Minnies [64] bail was granted by a single judge who had been part of
the court against whose decision the appeal was filed.
14.10 Petitioning the Judge President

No inherent jurisdiction similar to that exercised by superior courts vests in lower courts. Accordingly, when an accused
person has been convicted and sentenced by a lower court (ie, if the trial court was a District Court or a Regional Court),
the following procedural rules come into play: the accused can only launch an appeal to the High Court if the trial court
grants leave to appeal, and a sentence of imprisonment will only be suspended if the trial court grants bail pending appeal.
Bail pending appeal can only be granted by the trial court if an appeal has been noted, which in terms of the former rule 67
of the Magistrates' Court occurred when notice of appeal was filed with the clerk of the court; but in terms of rule 67 as
amended in 1997, an appeal will have been noted as soon as grounds of appeal have been filed (this will occur when an
application for leave to appeal is filed with the clerk of the court), or if such grounds appear from the record of the
application for leave to appeal (which constitutes the 'notice' of appeal). [65] If leave to appeal is refused by the trial court,
as a lower court it lacks jurisdiction to grant bail pending any further appeal-related steps.
This prompts the question whether a person sentenced to a term of imprisonment by the lower court, and having been
denied leave to appeal by the trial court, may be released on bail pending petitioning of the Judge President having
jurisdiction in terms of s 309C of the Act. The section offers no assistance, nor
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does any other provision of the Act. Inasmuch as magistrates are creatures of statute, bound to exercise only such
jurisdiction as may be conferred on them by the legislature, the answer appears to be that lower courts lack the power to
grant bail pending petitioning of the Judge President once they have refused leave to appeal. The result is that confusion
and inconsistency reign: certain magistrates, wrongly, it is submitted, are prepared to consider bail in such circumstances
pending petition to the Judge President. This, it is submitted, would appear to be the correct approach, but one that does
not assist the accused who languishes in prison while the sometimes drawn-out formalities preceding a decision on petition
are taking their course. As a result, a contrary practice has developed whereby such petitions are accompanied by written
applications for bail pending the outcome of the petition. However, the practice is not uniformly followed, not even within the
same division of the High Court. Thus, for instance, notwithstanding a fairly settled practice in the Cape High Court to
consider bail if a bail application accompanies the petition to the Judge President, in Tavase [66] Zondi J declined to consider
bail pending appeal against conviction by the lower court in conjunction with a petition directed to the Judge President, even
though the matter of bail had been fully addressed in the petition papers. Instead, the learned judge, having granted leave
to appeal on the merits, referred the accused back to the lower court to consider bail (which the regional magistrate
promptly refused as he did not agree with the High Court that leave to appeal should have been granted!). Absurdly,
therefore, the matter of bail had to be referred to the High Court a second time—latterly on appeal against the refusal of
bail by the magistrate.
With the latter delay in mind, and in order to limit the prejudice which a potentially wrongly convicted person may suffer
pending the consideration of his petition, there appears to be no bar or impediment to approaching the High Court in such
circumstances for bail pending the outcome of a petition to the Judge President, a practice which has been successfully
followed since s 309C was re-introduced into the Act and leave to appeal from lower courts became a requirement. Usually
the filing of the petition will precede such applications for bail; but there is no reason why the accused may not approach the
High Court for bail during the sometimes lengthy delay between the refusal of leave to appeal by the lower court and the
filing and subsequent consideration of the petition. The High Court customarily issues a directive, in conjunction with the
granting of bail, that the petition should be filed within a stated period, failing which bail will ipso facto lapse. [67]
The confusion referred to above has seen a Bench of two judges in S v Potgieter [68] attempt to analyse the position. It is
submitted that the headnote to
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the judgment is both accurate and of great assistance, as the judgment is complicated and, in attempting to be all-
encompassing, at times difficult to follow. The headnote reads as follows:
The appellant had been found guilty of theft in a magistrate's court and sentenced to tw o years' imprisonment. He applied to the
magistrate for leave to appeal against the sentence but leave w as refused. He then petitioned the Judge President for leave to
appeal and applied to a magistrate for bail pending the outcome of the petition. The application for bail w as also refused by the
magistrate. There w ere accordingly tw o matters before the Local Division: the petition for leave to appeal against the sentence and
an appeal against the magistrate's refusal of bail. The Court proceeded to analyse the provisions of the Criminal Procedure Act 51 of
1977 as amended by the Criminal Procedure Amendment Act 56 of 1997. The Court noted that there w as a divergence of opinion as
to the procedure w hich had to be follow ed by a person aggrieved by the decision of a magistrate to refuse bail.
The Court held that w here the accused had not yet been convicted the position w as governed by s 65 of the Criminal Procedure Act
51 of 1977 and an unconvicted accused had a right to appeal w ithout the leave of the Court. The Court held further that if a
magistrate refused bail pending review , the convicted person had an automatic right to approach the High Court under s 65: there
w as no good reason w hy in principle an appeal against a refusal of bail pending review should be dealt w ith differently to an appeal
against a refusal of bail pending appeal and the Legislature had not manifested a contrary intention.
The Court held that it w as clear from both the provisions of s 309B and Rule 67 that grounds of appeal, amended by the accused if
he so desired, w ere both necessary and sufficient to define the issues on appeal. A notice of appeal after leave to appeal had been
granted w as not required. Furthermore, s 309(4)(b) did not provide that the application had to be successful before the magistrate
w as empow ered to grant bail pending appeal, or that it w as required that the application for leave to appeal against conviction and
or sentence had to be 'noted', w hich w as quite a different concept. Once grounds of appeal had been filed, an appeal against
conviction and or sentence had been 'noted' and a magistrate w as, in terms of s 309(4)(b) read w ith s 307, empow ered to grant bail.
Although it w as not necessary for him to do so, it w as obviously desirable for him to hear the bail application and the application for
leave to appeal at the same time.
If the magistrate refused bail, then s 309(4)(b) read w ith s 307(6) provided that an appeal lay in terms of s 65. The bail w ould have
to be pending the outcome of further proceedings: it could conceivably be pending the magistrate's decision on the application for
leave to appeal but more usually the decision w hether to grant leave to appeal w ould have been made by the magistrate by the time
that the bail appeal w as heard by the appeal Court and that should be the norm. If the magistrate granted leave to appeal against
the conviction and/or sentence, he might w ell grant an application for bail but if he did not, a High Court could do so on appeal in
terms of s 65, pending the hearing of the appeal against conviction and/or sentence.
If the magistrate refused the application for leave to appeal against the conviction and/or sentence, a petition w ould be necessary.
In many, if not most, cases, the appeal against the refusal of bail w ould be lodged together w ith the petition. The petition could be
dealt w ith in Chambers but the appeal in terms of s 65 could not: it had to be dealt w ith in Court. The petition required the attention
of tw o Judges w hereas the appeal did not: it w as obviously desirable that the tw o Courts have at least one Judge in common and
the appellant's attorney and the Registrar should ensure that this is so.
In some cases it may be that the appeal against the refusal of bail w as brought separately and in advance of the petition for leave
to appeal against conviction and/or sentence: in such cases there w as no reason w hy bail should not be granted pending the
outcome of the petition and
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subject to the appellant complying w ith the provisions relating to petitions set out in s 309C and, if the petition w as granted, pending
appeal provided that the appellant complied w ith the obligations incumbent upon him timeously and properly to prosecute the appeal
w hich w as the procedure adopted in the High Court w here bail w as granted pending a petition to the Chief Justice and, if the petition
succeeded, pending the outcome of the appeal.
In the present matter the Court held that there w as at least a reasonable prospect that a Court on appeal w ould interfere w ith the
sentence imposed by the magistrate by substituting a non-custodial sentence and the petition for leave to appeal against the
sentence w as accordingly granted. Bail w as granted pending appeal.
Although it may be criticised where it seems to suggest that lower courts may grant bail pending appeal where the trial
court has refused leave to appeal, the judgment is nevertheless to be welcomed as it seeks to expand the lower courts'
jurisdiction and so benefit the accused who awaits the Judge President's decision on his petition for leave to appeal. The
relevant passage from the judgment may be useful as a tool to obviate the necessity of approaching the High Court for bail
in every instance where the lower court has refused leave to appeal—a time-consuming, expensive and unnecessary
exercise. The judgment in S v Potgieter [69] reads:
It is clear from both the provisions of s 309B, and Rule 67, to w hich I have referred, that grounds of appeal, amended by the accused
if he so desires, are both necessary and sufficient to define the issues on appeal. A notice of appeal after leave to appeal has been
granted, is not required. Furthermore, s 309(4)(b) does not provide that the application must be successful before the magistrate is
empowered to grant bail pending appeal—all that is required is that the application for leave to appeal against conviction and/or sentence
must be 'noted', which is a quite different concept.
The consequence of the aforegoing is that once grounds of appeal have been filed, an appeal against conviction and/or sentence
has been 'noted' and a magistrate is, in terms of s 309(4)(b) read w ith s 307, empow ered to grant bail. Although it w ould not be
necessary for him to do so, it w ould obviously be desirable for him to hear both the bail application and the application for leave to
appeal at the same time. (Emphasis added.)
14.11 Petitioning the Constitutional Court

A person who has been convicted by a lower court (and had his conviction or sentence confirmed on appeal to the High
Court), or who has been convicted by a superior court and seeks to appeal further on a constitutional point, may in
appropriate circumstances approach the Constitutional Court for leave to appeal against his conviction or sentence on
constitutional grounds. As with a petition directed to the Supreme Court of Appeal, such a constitutional application for
leave to appeal is made on notice of motion. The High Court, in the exercise of its inherent common-law discretion, may
grant bail pending the outcome of such application and, if the application is successful, pending the outcome of the
appeal. [70] The position is markedly different where the accused has
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unsuccessfully pursued his appeal in the Supreme Court of Appeal, and wishes to appeal further to the Constitutional Court
on a constitutional point, as was the case in Thebus. [71] The Supreme Court of Appeal has only appeal jurisdiction
conferred upon it by statute; therefore it lacks the common-law jurisdiction of the High Court (save perhaps with regard to
matters heard but not decided by it). [72] Pointedly, it does not have the power to grant bail pending further appeal to the
Constitutional Court once it has exhausted its appeals function and become functus officio. For that reason, should the
accused wish to prosecute an appeal in the Constitutional Court after having failed in the Supreme Court of Appeal, the
court having jurisdiction with regard to bail pending petitioning of the Constitutional Court (and subsequent appeal) is the
trial court. [73]
In S v Nel [74] the Transvaal Provincial Division of the High Court (per Moseneke J, as he then was) adopted the decision in S
v Hlongwane and held:
Having carefully surveyed the authorities which deal with the applicable principles in evaluating the granting of bail, pending leave to appeal,
I am quite satisfied that this Court has the appropriate, inherent authority to grant such bail. By parity of reasoning and legal necessity
such pow ers of this Court to determine bail extend to cases w here the applicant aw aits special leave by the Constitutional Court to
appeal against the decision of the Supreme Court of Appeal.
I am, how ever, unconvinced that the test in evaluating the granting of such bail is any different from the enquiry w hich is currently
formulated by the authorities and encapsulated in the Hlongwane decision. I am not persuaded that another court w ill come to the
conclusion that it is in the interest of justice that, in a matter such as the present, there should be an undue elongation of the judicial
process by w hich the guilt or the absence of guilt of the applicant has to be determined. I persist in the view that finality is a very
important consideration in a matter such as the present w here the Supreme Court of Appeal has had occasion to deliberate on and
determine both the merits and sentence of the applicant's appeal. It is not in the interest of justice, that a duly convicted person
should delay or postpone serving his or her sentence by seeking to be released on bail w ithout any reasonable prospect of an
appellate Court altering such conviction or sentence. . . .
Mr Kruger argued that that was not my decision. That was a decision for the Constitutional Court. He is clearly incorrect. The decision for
the Constitutional Court is to determine the merits of the application for special leave to appeal against the decision of the Supreme Court of
Appeal. The decision of this Court is to determine whether there is a reasonable prospect of success of the application, should it come before
the Constitutional Court. That is a very vital distinction. Superior Courts, in the normal course of their functions, are called upon to pass
judgment on whether there is a reasonable likelihood of success should an appeal come before another Court of appellate jurisdiction. I am
not called upon to usurp the function of the Constitutional Court. I am called upon to determine, on the total evidentiary material
before me, w hether the Constitutional Court is likely to alter materially the decision arrived at by the Supreme Court of Appeal. That is
clearly very different from the function of the Constitutional Court, w hich w ould be seised [sic] w ith the determination of the merits of
the actual application for leave w hich I am not called upon to do. (Emphasis added.)
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14.12 Petitioning the Minister

In terms of s 327(1) of the Act the accused is permitted to petition the Minister (of Justice, or by whatever name the
relevant executive function may from time to time be described) for leave to present new evidence. Thereupon the Minister
may, if he considers that the new evidence may affect the conviction, refer the matter back to the trial court to consider
such evidence; or if the Minister considers that the application has no merit, he may refuse it. The process is a tortuous
one: [75] if the Minister allows it to proceed, the trial is effectively reopened; [76] at the conclusion of the reopened trial, the
trial judge reports to and advises the President (of the country) as to whether or not he considers that the new evidence
affects the conviction (without announcing his finding to the parties); [77] and upon considering the trial judge's report, the
President may direct that the conviction be expunged from the records, having the effect of a free pardon, [78] or direct that
the conviction and/or sentence should be reduced. [79] All of this is preceded by the various appeals procedures, as the
application will only be entertained by the Minister once the accused has 'exhausted all the recognised legal procedures
pertaining to appeal or review'. [80] It follows that such petition proceedings are not competent where proceedings against
the accused are pending in a superior court or where the accused intends a further appeal or review application or the
reservation of a question of law. [81] Where the accused, therefore, commences petition proceedings, he will have exhausted
the jurisdiction of the superior courts on appeal or review or consideration of questions of law, and such courts will not be
able to grant the accused bail pending such petition. [82]
14.13 Bail pending appeal or review of decisions of military tribunals

Neither the successive Defence Acts nor the Military Disciplinary Code make provision for bail pending appeal or review where
a member of the SA National Defence Force has been convicted by a military tribunal and sentenced to undergo
imprisonment. Historically, it seems, there has been no prospect of bail
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in military matters. However, in S v Tsotsi [83] it was held that the constitutional right to bail extended by s 35(3) of the
Constitution to 'accused' persons applies equally to those subject to military court proceedings. This aspect is discussed
more fully in Chapter 18.
[1] See also para 1.2.
[3] R v Vlotman 1911 AD 632. The ratio appears to be that the Supreme C ourt of Appeal, being a superior court, has such inherent power by virtue
of the fact that 'it is necessary to its functioning as a superior court'—see Taitz The Inherent Jurisdiction of the Supreme Court (1985) 41. It is important
to note, however, that the Supreme C ourt of Appeal has only appellate jurisdiction; this means that, while it necessarily has the power to control its
own process, it lacks the more extensive inherent common-law powers of the High C ourt. See also the cases discussed in para 14.5 below.
[4] Sections 307, 309(4)(b) and 309(5) of the Act.
[5] C PD case no 3/81, 30 May 1985 (unreported on this aspect).
[6] C PD case no 297/84, 19 November 1985 (unreported).
[7] Section 308A(a) of the Act.
[8] Section 308A(b) of the Act.
[9] Ferreira Strafproses in die Laer Howe (1979) 216.
[10] Ibid. Prior to 1963 the accused was, in terms of s 101 of Act 32 of 1944, entitled as of right to bail pending appeal, and the magistrate simply
had to fix the amount of bail—S v Sisulu 1963 (2) SA 596 (W). See also R v Fourie 1948 (3) SA 548 (T); R v Milne and Erleigh (4) 1950 (4) SA 601 (W);
R v Mafika 1955 (1) SA 1 (W); S v Mthembu 1961 (3) SA 468 (N).
[11] See, for example, Kaspersen v R 1909 TS 639; Ex parte Van Niekerk 1925 OPD 43; R v Grigoriou 1953 (1) SA 479 (T); S v Perumal 1967 (3)
SA 725 (D).
[12] The view that no amount of money can possibly reduce the risk of abscondment where abscondment and forfeiture of money are the alternative
to being executed in the event of an unsuccessful appeal, was succinctly expressed in Harcourt (ed) Swift's Law of Criminal Procedure (1969) 152:
'. . . [I]n view of the likelihood that a man will abscond rather than be hanged the evidence in an application for bail in a capital charge must be
sufficient to outweigh the inferences which the court may draw from the circumstances of the case.'
[13] Leibman v Attorney-General 1950 (1) SA 607 (W).
[14] For instance, where evidence presented after sentence has been passed reveals that the accused is innocent beyond all doubt (as in Leo C PD
case no 297/84, 19 November 1985 (unreported)) or that the conviction and sentence cannot possibly be sustained because after sentence has been
passed the deceased is proved to be alive and well and present outside court (cf S v Augustine 1980 (1) SA 503 (A)).
[15] 2005 (2) SAC R 572 (TkH).
[16] 2007 (2) SAC R 470 (SC A). It must be pointed out, however, that s 321 of the Act, which governs appeals to the Supreme C ourt of Appeal, does
not prohibit the grant of bail pending appeal against a life sentence (nor did it previously preclude bail pending appeal against the death sentence)—cf
the record of Kramer TPD case no 383/82, 26 August 1982 (unreported) at 158-9 (per Van Reenen J).
[17] Above: '. . . tydens die emosionele toestand wat onmiddellik na die oplegging van die vonnisse geheers het, is versoek dat beskuldigde Kramer
op borg vrygelaat word hangende appèl en het die Staatsaanklaer geen beswaar geopper nie'.
[18] In the event, the appeal failed, but the death sentence was commuted to 20 years' imprisonment. It is not known whether the accused was
available to serve that sentence.
[19] (423/11) [2011] ZASC A 214 (29 November 2011) (unreported elsewhere at time of writing).
[21] S v Mthembu (above).
[22] 1980 (4) SA 94 (W).
[23] At 100.
[24] 1981 (1) SA 1170 (ZA).
[25] At 1172-3.
[26] 1986 (2) SA 307 (SE) 309: 'Myns insiens waar, soos in die onderhawige geval, dit gaan oor borgtog hangende appèl alleenlik teen vonnis, is een
van die deurslaggewende beginsels of daar redelike vooruitsigte van sukses op appèl is, dws of daar redelike vooruitsigte is dat 'n ander vonnis as
gevangenisstraf tot so 'n mate verminder sal word dat die beskuldigde benadeel sal word as van hom verwag word om sy vonnis te begin uitdien
hangende appèl omdat enige verminderde vonnis reeds sou verstryk het voor die appèl afgehandel is. 'n Afwesigheid van sodanige redelike
vooruitsigte sou die weiering van borgtog regverdig. Ofskoon die persoonlike vryheid van die individu altyd 'n belangrike oorweging is, waar 'n persoon
nie sy skuldigbevinding beveg nie, vereis gesonde en effektiewe regspleging spoedige uitdiening van sy vonnis, en bestaan daar geen logiese,
juridiese of morele redes waarom die tenuitvoerlegging van sy vonnis vertraag moet word nie as 'n appèl teen vonnis nie redelike vooruitsigte van
sukses het nie. (Vergelyk R v Fourie 1948 (3) SA 548 (T) op 549.) Volgens algemene beginsels sou die onus op die appellant berus om redelike
vooruitsigte van sukses op appèl aan te toon.'
[27] S v Richardson 1992 (2) SAC R 169 (E) 171c.
[28] S v Anderson 1991 (1) SAC R 525 (C ). See also S v Hudson 1996 (1) SAC R 431 (W) 434c where it was held that '[t]he question is not whether
the appeal “will succeed” but, on a lesser standard, whether the appeal is free from predictable failure to avoid imprisonment'; S v Naidoo 1996 (2)
SAC R 250 (W) where the 'possibility of success on appeal' was held to be sufficient. But cf S v Ndjadayi 1995 (2) SAC R 583 (E) 585c.
[29] Above.
[30] Above.
[31] Above.
[32] 2003 (2) SAC R 575 (SC A).
[33] Above.
[34] Above.
[35] Above para [6].
[36] Above paras [5]-[7].
[37] S v Anderson (above); S v Hudson (above); S v Naidoo (above).
[38] See also S v Hudson (above).
[39] Masoanganye v S 2012 (1) SAC R 292 (SC A) paras [13]-[15].
[40] 1955 (2) SA 130 (N).
[41] The reasoning in Govender was doubted but not rejected in S v Kuthumela 1984 (4) SA 5 (T) 8.
[42] Above.
[43] S v Kuthumela (above) 8-9.
[44] 1995 (1) SAC R 169 (W).
[45] Para 14.10.
[46] Para 14.9.
[47] Ibid.
[48] Para 14.11.
[49] Para 14.12.
[50] Beehari v Attorney-General, Natal 1956 (2) SA 598 (N).
[51] 1989 (4) SA 79 (T) 95C -97E. See also Chunguete v Minister of Home Affairs 1990 (2) SA 836 (W).
[52] At 101I-102A.
[53] 1990 (2) SAC R 155 (NC ).
[54] 1989 (1) SA 821 (A) 834E-F.
[55] 1989 (3) SA 154 (A) 164C -D.
[56] See, for example, S v Hattingh 1992 (2) SAC R 466 (N); Nel 2002 (1) SAC R 425 (T).
[57] Section 39(2) of the C onstitution.
[58] Section 173 of the C onstitution.
[59] In para 14.10.
[60] See for instance Hlophe JP in Abader WC HC case no A292/09, 23 July 2010 (unreported); H Erasmus J in Minnies WC HC case no A288/08, 22
September 2009 (unreported).
[61] See for instance Newdigate AJ in Thebus C PD case no 5692/02, 5 September 2002 (unreported); Moosa J in Abader (above).
[62] In terms of s 316(3) (formerly s 316(1A)) of the Act.
[63] See nn 60 (petition to the SC A) and 61 (petition to the C onstitutional C ourt).
[64] See footnote 61.
[65] S v Potgieter 2000 (1) SAC R 578 (W) 583-4.
[66] WC HC case no A411/11 (unreported).
[67] C f Newdigate AJ in Thebus C PD case no 5692/02, 5 September 2002 (unreported) (bail pending petitioning of the C onstitutional C ourt); Hlophe
JP in Abader (above) (bail pending petitioning of the SC A); Moosa J in Abader (above) (bail pending petitioning of the C onstitutional C ourt); H Erasmus
J in Minnies (above) (bail pending appeal to the SC A).
[68] 2000 (1) SAC R 578 (W).
[69] At 584.
[70] On the same basis as discussed with reference to bail pending petitioning of the SC A in para 14.9 above. See S v Hlongwane 1989 (4) SA 79
(T), extensively quoted in para 1.3 above. For an example, see Abader (above), where leave to appeal was refused by the SC A on petition to it, and
bail was successfully sought pending a petition for leave to appeal to the C onstitutional C ourt.
[71] C PD case no 5692/02, 5 September 2002 (unreported).
[72] Taitz 40-2.
[73] By which is meant the division of the High C ourt in which the trial court sat—see Thebus (above).
[74] 2002 (1) SAC R 425 (T).
[75] Recent experience following the celebrated case of Thebus (above), where crucial identification witnesses recanted their evidence under oath,
has been that a response from successive ministers was not forthcoming after several years of reminders and compliance with repeated bureaucratic
requests for re-submission of the petition.
[82] Beehari v Attorney-General, Natal (above) 603; Chunilall v Attorney-General, Natal 1979 (1) SA 236 (N) 237. C f S v Kaplan 1967 (1) SA 634 (T)
636. The distinction in principle between petitioning of, for example, the Supreme C ourt of Appeal and petitioning the Minister lies in the very fact that
the courts are able and prepared to consider bail before the judicial process has been exhausted. See R v Patel 1952 (1) SA 674 (T).
[83] 2004 (2) SAC R 273 (E). And see also Mbambo v Minister of Defence 2005 (2) SA 226 (T).
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15
Appeal and review of bail proceedings
15.1 Bail appeals: principles

In terms of s 65(1)(a) of the Act an accused who 'considers himself aggrieved' by the refusal of bail by a lower court, or by
such court's imposition of a bail condition, may appeal against the magistrate's order. It is submitted that the precondition
for the lodging of an appeal is entirely subjective and amounts to no more than that the accused desires to appeal against
the lower court's order. Thus, the accused would seem to have a right of appeal. However, such right is limited by the
circumscription of the circumstances in which it may be exercised: bail appeals are competent only against refusal of bail or
against the nature or ambit of a bail condition (which would include a condition relating to the amount of bail fixed by the
court). [1] It may therefore be stated that an appeal against a lower court's order upon a bail application is an appeal against
such court's exercise of its discretion (such as where the court considers that the accused's release would prejudice the
administration of justice) or against such court's interpretation of a legal provision (such as where the court considers that
a section of the Act or legal precedent compels it to adopt a certain approach to the application). [2]
It is submitted, however, that the view, which once prevailed to the effect that a bail appeal should fail unless it was
shown that the lower court had acted unreasonably [3] or had failed to apply its mind to the application, [4] is no longer
valid. It is submitted that the accused has an unfettered right of appeal in its full sense, and that the High Court has an
overriding discretion whereby it is free to substitute its views for those of the lower court. Thus, in S v Mohamed [5] the
following was said:
[T]he appeal by an aggrieved accused . . . to a Superior Court against a decision of a magistrate in respect of his application to be
released on bail, is an appeal in the w idest sense, that is, it is a complete re-hearing and re-adjudication by the Superior Court of the
merits of the application . . . in w hich it can, in the exercise of its ow n discretion, make such order as to it seems just . . .
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This submission may seem to be defeated by the provisions of s 65(4) of the Act, in terms of which a bail appeal should fail
unless the court of appeal 'is satisfied that the decision [of the lower court] was wrong'. However, this provision places no
greater burden on a bail appellant than that which is carried by any appellant in criminal appeals generally, for an ordinary
criminal appeal will not succeed either unless the court of appeal was satisfied that the decision appealed against was
wrong. [6] It is accordingly submitted that bail appeals are no different from ordinary appeals and that a court of appeal will
make the decision that the lower court, in its opinion, ought to have made. [7] It must be pointed out, however, that a court
of appeal will not lightly overturn the lower court's decision. [8] Thus, in S v Barber, [9] Hefer J made the following remarks:
It is w ell-know n that the pow ers of this Court are largely limited w here the matter comes before it on appeal and not as a
substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion w hich he has w rongly.
Accordingly, although this Court may have a different view , it should not substitute its ow n view for that of a magistrate because that
w ould be an unfair interference w ith the magistrate's exercise of his discretion. I think it should be stressed that, no matter what this
Court's own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that
discretion wrongly. . . . Without saying that the magistrate's view was actually the correct one, I have not been persuaded to decide that it
is the wrong one. [10] (Emphasis added.)
Finally in this regard, it should be pointed out that some differences of impact may exist with regard to the wording of the
English and Afrikaans texts of s 65(4) of the Act. The English text allows interference by a superior court if it is 'satisfied'
that the magistrate's decision was wrong, whereas the Afrikaans text refers to a superior court being so 'convinced'
('oortuig'). In S v De Abreu [11] the possible implications of this difference were raised but not decided. [12]
The attorney-general may also appeal against the decision of a lower court to grant bail, or against any bail condition
imposed by such court. [13] This right of appeal is also available to the attorney-general in respect of a decision by the
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High Court to release the accused on bail (but not, it would seem, against a bail condition imposed by the High Court). [14]
The High Court hearing a bail appeal may, in the exercise of its appellate jurisdiction, confirm the refusal of bail, or set it
aside and grant bail in the amount and upon the conditions that it deems appropriate. Where only the conditions of bail
granted by the lower court are assailed, the High Court may in its discretion confirm the conditions, or impose different
conditions. It is also competent for the High Court to refer a matter which comes before it as a bail appeal, back to the
lower court to hear further evidence.
15.2 Appeal against extra-curial refusal of bail

The provisions of s 65 of the Act in terms apply only to bail orders made by a lower court. It is therefore clear that a refusal
of bail by a police official in terms of s 59 or by the attorney-general or a prosecutor in terms of s 59A of the Act is not
appealable.
15.3 Appeal against refusal of bail by lower court

The wording of s 65(1)(a) of the Act makes it clear that the accused may appeal against a lower court's decision only if it
amounted to a refusal of bail or if it embodied unacceptable bail conditions. It is submitted that 'refusal' should be
understood in its ordinary sense [15] of an act on the part of the magistrate denying bail altogether. It follows that a
'refusal' of bail does not arise where bail is granted coupled with a prohibitive amount or grievously onerous conditions. [16]
Will an appeal in terms of s 65 of the Act lie where the magistrate simply declines to hear an application? It not
infrequently happens that an attorney rises to announce that his instructions are to apply for bail, only to be met with a
judicial response such as 'I don't think so'. Where bail is denied otherwise than by an act of the court (in the sense that the
court orders the denial of bail), it will not amount to a 'refusal', and will not give rise to a bail appeal. In S v Baleka [17] an
[18]
attorney-general had issued a certificate in terms of s 30(1) of the Internal Security Act [18] prohibiting the release on bail of
the specified accused. At a subsequent application for bail in the magistrate's court the competence of the prohibition was
attacked on a number of grounds, upon which the magistrate decided that he lacked jurisdiction to rule upon the validity of
the prohibition. [19] In consequence of the magistrate's attitude, the accused brought a new bail
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application, which was heard by a Full Bench of the Transvaal Supreme Court. It was contended before that court that the
application was irregular and that the accused's correct remedy was to appeal against the magistrate's decision. In a
minority judgment Stegmann J held that the magistrate's failure to rule upon the validity of the attorney-general's
prohibition amounted to a 'refusal' of bail. [20] However, Eloff DJP held [21] that the magistrate had not refused bail but had
merely come to the conclusion that he could not entertain a bail application, and that a bail appeal was accordingly not
competent.
Although the dictum in S v Baleka prima facie appears to be inconsistent with the situation in Ramgobin (1), [22] it is
submitted that the two cases are in fact distinguishable. In Ramgobin (1), where the magistrate had also declined to hear a
bail application, the accused appealed, not against a refusal to grant bail (and therefore not in terms of s 65(1)(a) of the
Act) but against the magistrate's ruling that he was unable even to entertain a bail application. [23] It is submitted that, as
in the case of S v Baleka, in the absence of a refusal of bail by the magistrate the accused in Ramgobin (1) would not have
been entitled to a bail appeal as authorised by s 65 of the Act.
15.4 Leave to appeal lower court's decision

At common law and in terms of successive statutes, an accused person had a right of appeal from the lower court to a
superior court, both with regard to conviction (and sentence) and the refusal of bail. The right of appeal has also been
enshrined in s 35(3)(o) of the Constitution. Thus, before 1997 leave to appeal from the lower court was not a precondition
to the exercise of the right of appeal. However, by the introduction of s 309B of the Act in 1997 [24] an accused person was
required to obtain leave to appeal against 'any decision or order of a lower court'. [25] Initially, the leave to appeal
requirement was enforced by the lower courts in respect of appeals sought against conviction and sentence, and by some
magistrates in respect of prospective bail appeals, until the section was re-enacted pursuant to a declaration of its invalidity
by the Constitutional Court on the grounds that it infringed the right of appeal guaranteed by s 35(3)(o) of the
Constitution. [26]
The current position is therefore as follows: leave to appeal is required when a conviction or sentence imposed by a lower
court is sought to be challenged on appeal. Is the refusal of bail a 'decision or order of a lower court', and as such subject
to the requirement of leave to appeal? On the face of it the answer must be 'yes'. However, an examination of the setting in
which the phrase resides, in conjunction with the specific wording of s 65 of the Act, raises a doubt as to
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whether s 309B applies to bail appeals. This question has been authoritatively answered in the negative in a series of
judgments from several divisions of the High Court. [27] In S v Mohammed [28] Comrie J explained the rationale for this
conclusion:
Ms Grey submitted that leave is also required to appeal against the refusal of bail. The argument is w ithout merit. Section 65, w hich
deals w ith bail appeals by accused persons, now here specifies that leave to appeal is required. Section 309B(1) provides:
'An accused w ho w ishes to appeal against any decision or order of a low er court must, w ithin 14 days or such extended period
as may be allow ed on application and on good cause show n, apply to that court for leave to appeal against the decision or
order.'
But if one refers back to ss 309(2), then it is clear that such 'decision or order' is one given by a magistrate in the course of a criminal
trial ending in a conviction. Furthermore, if it w as the intention of the Legislature to impose a leave to appeal requirement on bail
appeals, I w ould expect such intention to have been clearly expressed in s 65 by w ay of an appropriate amendment to that section.
The amending legislation, Act 76 of 1997, left s 65 untouched. I am accordingly satisfied that leave to appeal is not required in respect of
the . . . refusals of bail. (Emphasis added.)
Accordingly, leave is not required to appeal against the refusal of bail or the imposition of a bail condition (including the
amount of bail) by a lower court. However, the position is one of considerable complexity as far as the question of leave to
appeal against the High Court's refusal of bail is concerned. A distinction is drawn between those cases where the High
Court sits as a court of first instance (in which event an appeal to the Supreme Court of Appeal lies without leave to
appeal), [29] and where the High Court sits as a court of appeal against the refusal of bail by a lower court: in the latter case
an appeal to the Supreme Court of Appeal against the High Court's dismissal of the appeal from the lower court will only be
competent with leave. [30]
15.5 Appeal against refusal of bail by superior court: introduction

Section 65 of the Act explicitly provides for an appeal when the accused is aggrieved by the decision of 'a lower court'. The
section is silent on the question of appeals against the refusal of bail by a superior court sitting either as the court of first
instance (ie, as the court hearing a substantive bail application) or as the court of second instance (ie, sitting as the court
hearing a bail appeal emanating from an application for bail refused by a lower court).The question then arises whether
refusal of bail by a superior court is appealable and, if so, which court would hear such an appeal, and what the source of
the appellate court's jurisdiction would be. These aspects are discussed in the next few paragraphs.
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15.6 Superior court as court of first instance

It was held in S v Ndjadayi [31] that a refusal of bail by a judge of a superior court, sitting as a court of first instance, is
indeed appealable. The reasoning was as follows:
Under the new Constitution a bail application is an application to enforce the right of an arrested person to his release from detention
even if that right is not unlimited. The effect of the new Constitution is to make the application for release from detention w ith or
w ithout bail a species of the interdictum de libero exhibendo and, as such, in my view , civil proceedings w ithin the meaning, not only of
s 3 of Act 45 of 1988 to w hich I have referred, but also of s 20 of the Supreme Court Act 59 of 1959, w ith the result that I consider
that the refusal of bail is appealable . . . [32]
While it is submitted that the labelling of bail proceedings as 'civil proceedings' is arguable (at best they may be described as
[33]
'civil in form [but] criminal in substance'), [33] the judgment is nevertheless supported as its effect is to supplement a lacuna
in the Act and to give substance to an accused person's right to liberty. The superior courts have in any event done this in
the past by assuming an inherent jurisdiction to control their own judgments. The issue has now been authoritatively
decided in S v Botha, [34] where the following was held: [35]
[3] . . . The Act how ever makes no provision for an appeal by an accused against the refusal of bail by a High Court as court of first
instance.
[4] The question is accordingly w hether provision for such an appeal may be found in sections 20 or 21 of the Supreme Court Act, and
if so, w hether leave to appeal is required.
...
[13] I am therefore of the view that . . . it ought to be held that s 315(4) of the Act does not exclude an appeal in terms of s 21(1) of
the Supreme Court Act to appeal [sic] to this Court against the refusal of bail by a High Court as Court of first instance. As in the case
of Absalom 1989 (3) SA 154 (A) the accused does not require leave for [such appeal] (Absalom's case at 162B-D). (My translation)
Thus, it has now been established that the law allows an appeal against the decision of a superior court refusing bail as a
court of first instance (ie, a superior court hearing and refusing a bail application) as of right (ie, leave to appeal is not
required).
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15.7 Superior court as court of second instance

It was shown above that leave is not required to appeal against the refusal of bail by a lower court. It is important to bear in
mind that the reason for this is not to be found in the fact that, historically, a right of appeal was extended to all accused
persons against lower court decisions on the merits, without leave being required. Rather, the ratio is to be found in the
fact that the 1997 legislative requirement of leave to appeal against decisions of lower courts applied only to appeals falling
outside the ambit of Chapter 9 of the Act—and more specifically, of s 65. There is no section in the Act which deals with the
appealability of bail applications or bail appeals heard by a superior court, or which confers jurisdiction on any court to hear
bail appeals emanating from decisions of a superior court. It follows that this ratio is not applicable to the question whether
leave is required to appeal against the decision of a superior court refusing bail, be it as court of first or second instance.
Earlier uncertainty over whether an accused person could avail himself of a further appeal once his refusal of bail by a
lower court has been confirmed by a superior court on appeal, has been removed by the leading case in point, namely
Botha: [36]
Section 65 of the Act expressly provides for an appeal to a High Court against the refusal of bail by a low er court. A further appeal to
this Court is possible from such appeal, in terms of s 21(1) of the Supreme Court Act 59 of 1959, either w ith leave of the court a quo
or, if such is refused, w ith leave of this Court (S v Mohamed 1977 (2) SA 531 (A) at 541C-D). (My translation)
Thus, the law allows an appeal against the decision of a superior court refusing bail as a court of second instance (ie, a
superior court or a single judge thereof hearing and dismissing an appeal against a lower court's refusal of bail). However,
leave to appeal is required. It is submitted that this reality is unsatisfactory, as it inevitably works to the accused's
disadvantage: inasmuch as bail appeals are inherently urgent matters (and are indeed treated as such by the Supreme
Court of Appeal, which allows them to be fast-tracked on its roll), the potentially cumbersome process of obtaining leave to
appeal militates against the speedy hearing of the appeal. Thus, assuming that the dismissal of the accused's bail appeal by
the High Court leads to further consultations with the accused and his family about the options remaining, and about
funding a further appeal, an application for leave to appeal needs to be drafted; in the Western Cape High Court, for one,
thereafter a meeting has to be scheduled with the Judge President to allocate a judge and date for leave to appeal to be
argued; and only once leave to appeal has been argued and granted, will the record be prepared for the Supreme Court of
Appeal. [37] All of this may
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in practice occupy weeks, if not months. The situation is, of course, exacerbated if the High Court refuses leave and the
accused is obliged to have a petition for leave to appeal prepared and placed before the Supreme Court of Appeal.
15.8 Court having appellate jurisdiction

The Act is silent as to the jurisdiction of the Supreme Court of Appeal to hear appeals against judgments of the High Court,
given either as a court of first instance, or on appeal against a lower court's decision, refusing bail. The Act is also silent as
to the jurisdiction of a Full Bench of the High Court to hear an appeal against the judgment of a single judge sitting as a
court of appeal in terms of s 65(1)(b) of the Act. Accordingly, until recently, uncertainty prevailed as to which court of
appeal would have jurisdiction to hear appeals against a superior court's refusal of bail. In this regard, the wording of s
20(1) of the Supreme Court Act 59 of 1959 is not helpful, as it reads:
An appeal from a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or
order of such a court given on appeal shall be heard by the appellate division or a full court as the case may be.
In S v Mohamed, which was decided with reference to the former Act and prior to the amendment of the Supreme Court
Act, it was held as follows:
[T]he appeal by an aggrieved accused under sec. 97 of the Code to a Superior Court against a decision of a magistrate in respect of
his application to be released on bail, is an appeal in the w ide sense, that is, it is a complete re-hearing and re-adjudication by the
Superior Court of the merits of the application, w ith or w ithout additional information, in w hich it can, in the exercise of its ow n
discretion, make such order as to it seems just; an appeal against its decision lies to this Court under secs 21(1), (2), and (3) of the
Supreme Court Act, but only w ith the leave of the Court a quo, and, if it is refused, w ith the leave of this Court; on such an appeal this
Court w ill only interfere if the Court a quo committed such an irregularity or misdirection or exercised its discretion so unreasonably or
improperly as to vitiate its decision. [38]
It is not clear whether the wording of s 65(4) of the Act, in contradistinction to that of s 97 of the former Act, and the
amendments to the Supreme Court Act, have rendered this dictum in S v Mohamed obsolete. In S v Maliwa, [39] for
instance, the following was held:
'Unlike s 97 or any other section of the Criminal Procedure Act 56 of 1955, s 65 of the present Act is an appeal in the ordinary sense,
and not a rehearing or a review . . . . I also agree w ith w hat is said in Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 140, namely
'Dit is, op grond van sub-art (4), soos 'n gew one strafappèl en dit val in klas (ii) van die drie moontlike appèlvorme w at op 538
van S v Mohamed 1977 (2) SA 531 (A) aangegee w ord.'
S v Mohamed is a decision of the Appellate Division, w here, at 538D-F, Trollip JA summed up the various types of procedure that can
fall under the w ord 'appeal'. He states:
Page 240
'W hat is the nature of the appeal under s 97 (of the prior Act)? It can only be one of three possible kinds:
(i) an appeal in the w ide sense; that is, a complete re-hearing and re-adjudication of the merits of the application for bail,
w ith or w ithout additional information;
(ii) an appeal in the well-known narrow, technical sense; that is, a re-hearing on the merits, but one that is limited to the
information on which the magistrate's decision was given, and in which the only issue to determine is whether that decision
was right or wrong;
(iii) a review ; that is, a limited re-hearing, w ith or w ithout additional information, to determine, not w hether the
magistrate's decision w as right or w rong, but w hether he exercised his pow ers and discretion honestly and properly
. . .'
In my view . . . this is an appeal strictu sensu in terms of sub-para (ii) of the judgment of Trollip JA supra. [40] (Emphasis added.)
It will thus be seen that, in applying the current legislation, our courts have departed from the approach adopted in S v
Mohamed, where Trollip JA, under the former Act, opted to describe the appeal in question in terms of (i) in the above-
quoted passage.
If the reasoning adopted in S v Ndjadayi [41] were to be applied to this problem, bail appeals from the High Court sitting
as a court of either first or second instance would be seen as civil matters, which, in terms of s 20 of the Supreme Court
Act, would be capable of being heard by either a Full Bench of the High Court or the Supreme Court of Appeal. However,
Froneman J's approach in S v Ndjadayi failed to find approval in the Supreme Court of Appeal's decision in S v Botha, [42]
where it was held that, for purposes of ss 20 and 21 of the Supreme Court Act, [43] which governs the subject matter of
appeals, bail matters should be regarded as criminal proceedings.
In S v Viljoen [44] the Supreme Court of Appeal drew attention to the unsatisfactory state of affairs, and made an appeal
to the authorities to give the question of appellate jurisdiction urgent legislative attention:
Secondly there is the question of bail appeals to this Court. As in the present case, such appeals are mostly based on the facts and
inferences based on the facts and do not entail any questions of law . Such an appeal against the judgment of a Judge of the High
Court, as a Court of first instance, can be disposed of far more sw iftly and cheaply by the Full Bench concerned. There is currently no
mechanism w hereby such appeals can be channelled to the Full Bench of the High Court. I suggest that the Department of Justice pay
urgent attention to this aspect. (My translation)
This appeal to the authorities to see to the conferment of appellate jurisdiction
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on the Full Bench of the various High Courts as a matter of urgency was repeated in S v Kock, [45] where it was suggested
that the law be reviewed 'sooner rather than later', for the same reasons as those raised in S v Viljoen. Unfortunately,
these eminently sensible and reasonable judicial requests, made mindful of the accused's constitutional right to swift access
to the courts, appear to have fallen on deaf ears.
Be that as it may, it would appear that the High Court, in at least three divisions, adopted an approach whereby an
appeal against the judgment of a single judge refusing bail as a court of second instance was heard by a Full Bench of those
respective jurisdictions. [46]
15.9 Appeal by the state against grant of bail by lower court

In terms of s 65A(1)(a) of the Act the attorney-general may appeal to the High Court against the decision of a lower court
to grant bail, and also against any particular bail condition imposed by such lower court. Section 65A(1)(b) of the Act makes
the provisions of ss 65(1)(b) and (c), 65(2) to (4) and 310A mutatis mutandis applicable to such an appeal by the
attorney-general. This is a far-reaching provision which is without precedent in common law or earlier South African statutes
on criminal procedure, and was only introduced into the Act concurrently with the new bail regime in 1995 [47] (which, albeit
that it may have been predicated upon scientific crime-control considerations, nevertheless comes across as a piece of
legislation unashamedly biased in favour of the state).
15.10 Appeal by the state only with leave

In terms of the applicable provisions of the Act the state may launch an appeal only after leave to do so had been obtained,
not from the lower court as might have been expected, but from a judge in chambers. [48] The state is required to give
notice in writing of the application for leave to appeal within 30 days of the lower court's grant of bail, setting out the
proposed grounds of appeal. [49] In addition, the attorney-general is enjoined to effect service upon the accused, at least
14 days before the hearing of the application for leave to appeal, of a copy of the application together with a summary of
the accused's statutory right of reply. [50] The accused's right of reply appears to be limited to a written presentation which
must be lodged with the registrar of the High Court within 10 days of service upon the accused of a copy of the application
for leave to appeal, and the registrar is required to furnish a copy of the accused's response
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to both the judge appointed to hear the application and the state. [51] Although the Act is silent on the question of legal
representation, s 310A necessarily implies that the attorney-general would be expected to argue the application for leave to
appeal; that being so, it follows that the accused would be similarly entitled to be legally represented in such application, and
to argue in opposition to it. It is submitted that proceedings are likely to take the form of an ordinary opposed motion.
Despite the Act's reference to an application 'in chambers', it is submitted that the application should take place in open
court, in accordance with established practice relating to applications for leave to appeal. Failure to have the application
heard in open court and to extend the right to legal representation to the accused would, it is submitted, be
unconstitutional and would amount to a failure of justice.
15.11 Appeal by the state: costs

Our superior courts are endowed with an inherent jurisdiction to make discretionary costs orders and, in appropriate cases,
to make punitive costs awards to express the court's disapproval with the conduct of one or the other party. [52] This
notwithstanding, historically our courts have been reluctant to mulct the attorney-general in costs in criminal proceedings
unless, for instance, an appeal by the attorney-general was regarded as 'frivolous' or 'vexatious'. [53] Other notable
exceptions have been the award of costs against the attorney-general where an accused person has succeeded in a judicial
review of the irregular conduct of a prosecutor. [54] However, the power to order the state to pay the accused's costs of the
application for leave to appeal, and also the appeal, is explicitly extended to a superior court by s 65A(1)(b), which
incorporates the provisions of s 310A(6) of the Act. In Khan [55] the interesting situation arose where the magistrate had
wrongly granted bail, thus prompting the attorney-general to seek and obtain leave to appeal. On appeal, the High Court
held that the magistrate had erred, but declined to uphold the state's appeal in the peculiar circumstances of the case
(which included the fact that the accused had, since being granted bail, observed his bail conditions). The court also declined
to award costs in favour of the accused, holding that the attorney-general had been entitled to launch the appeal. [56]
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15.12 Appeal by the state against grant of bail by superior court

Section 65A(2)(a) of the Act makes provision for the attorney-general to appeal to the Supreme Court of Appeal against a
decision of the High Court to release an accused on bail. Of particular interest are the omission of any reference in the
section to an appeal by the attorney-general against any bail condition imposed by the High Court; and the fact that an
appeal by the attorney-general does not lie to a Full Bench of the High Court.
In terms of s 65A(2)(b) the provisions of s 316 of the Act are made applicable mutatis mutandis to such an appeal. Thus,
as with appeals by the state against the grant of bail to an accused person by a lower court, leave to appeal is required, [57]
and the state may be ordered to pay the accused's costs of the application for leave to appeal and the appeal. [58]
15.13 Appeal against bail conditions

The former Act contained an express prohibition against the fixing of excessive bail, [59] and allowed for an appeal against
the setting of an excessive amount of bail. [60] No such prohibition or right of appeal has been re-enacted in the Act, but it
is submitted that both the prohibition and the right of appeal are implicit in the provisions of s 65(1)(a) of the Act, which
allows for an appeal against a bail condition 'including a condition relating to the amount of bail money'. It appears from the
wording of the section that not only the amount of bail, but any bail condition whatsoever may give rise to an appeal. Thus,
the accused will be able to appeal against a bail condition which unreasonably or unnecessarily confines him to a certain
district; or which requires him to report to an unnecessarily distant police station or to do so at unreasonable times or with
unnecessary frequency; or which unreasonably curtails his communication with others in his family or working environment
who happen to be prospective state witnesses.
It is apparent from the wording of s 65(1)(a) of the Act that it is immaterial at what stage a bail condition was imposed:
the accused may appeal equally against bail conditions imposed at the initial bail application and those imposed by way of an
amendment [61] or supplementation [62] of the original conditions.
While the attorney-general may, in terms of s 65A(1)(a) of the Act, appeal against the imposition of a bail condition by a
lower court, it would seem from the wording of s 65A(2)(a) that a similar appeal does not lie in respect of bail conditions
imposed by a superior court.
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15.14 Appeal against supplementation of conditions

In terms of s 65(1)(a) of the Act the accused is entitled to appeal against any bail condition that causes him to feel
aggrieved, including a condition imposed to supplement an original condition. [63]
15.15 Appeal against amendment of conditions

If the accused feels aggrieved by a condition imposed as an amendment of an original condition, he may also appeal against
such amendment. [64]
15.16 Appeal against refusal or conditions of bail pending appeal or review

The provisions of s 65(1)(a) of the Act are automatically made applicable to cases where a convicted person feels aggrieved
by a refusal of bail or the imposition of a bail condition pending appeal [65] or review [66] regarding an aspect of the trial
itself. In this regard two observations need to be made: first, a condition to the effect that the convicted person shall
surrender himself in the event of his appeal or review application being unsuccessful, in order that effect may be given to
the sentence imposed upon him, is not in itself appealable. The reason for this contention is that the terms of s 307(3) of
the Act, which require the imposition of such condition, are peremptory. It is submitted that it will be competent, however,
for the convicted person to appeal against a detail attaching to such condition (for instance, if the convicted person is
required to surrender himself at an unreasonable time or place [67] or if the court specifies that service of a notice referred
to in the section may be effected at an unacceptable place). [68] Secondly, refusal or conditions of bail pending appeal from a
superior court to a Full Bench of such court or to the Supreme Court of Appeal are not similarly appealable in terms of the
invocation of s 65(1)(a) where such superior court was the court of first instance: [69] for one thing, s 315(4) of the Act
specifies that appeals from a superior court to a Full Bench or to the Supreme Court of Appeal do not lie as of right, but
only as provided in ss 316-319 of the Act; [70] and s 316(1) provides for appeal against conviction and sentence only.
Furthermore, s 321(2) of the Act makes it clear that ss 66-68 and 307(2)-(5) of the Act apply to bail following conviction by
a superior court, thus excluding the operation of s 65, which relates to bail appeals.
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It has now been authoritatively asserted [71] that

an application for bail after conviction [by a superior court] is regulated by s 321 of the Act. . . . Through legislative oversight,
something this court has complained about for more than tw o decades, and ignored by the Executive, a convicted person has an
automatic right of appeal to this court against a refusal of bail.
Self-evidently such automatic right of appeal applies also where, in terms of s 321 of the Act, the trial judge has refused bail
pending appeal. This position manifestly only applies, however, where the judge sat as the court of first instance, as s 321
specifically refers to an accused person who has been 'sentenced by' a superior court.
Where an appeal is lodged against the judgment of a superior court acting as a court of appeal, a refusal of bail by such
court is appealable in terms of s 21(1) of the Supreme Court Act. [72]
15.17 Appeal against cancellation of bail
In S v McInnes [73] it was held that the cancellation of bail (which entails the arrest and detention of the accused and
forfeiture of the bail money) [74] amounts to a 'refusal' of bail and is therefore appealable. The reasoning in S v McInnes,
which was adopted in S v Casker, [75] was that an accused whose bail is cancelled continues tacitly to apply for bail, which is
'refused' by the order that bail originally granted be cancelled. It is submitted that this reasoning is strained and somewhat
artificial, and that the legislature could not have intended the word 'refusal' to cover cancellation of bail. [76] In Pillay v
Regional Magistrate, Pretoria, [77] Jack v Vermeulen [78] and Sebe v Magistrate, Zwelitsha [79] the existence of a right of
appeal against cancellation of bail was rightly called into question.
It is submitted that a magistrate's refusal to cancel the accused's bail and refund his bail money upon his own
application [80] will similarly not be appealable, for it is simply not covered by s 65 of the Act.
15.18 Appeal against forfeiture of bail money

The wording of s 65 of the Act makes it clear that the legislature envisaged appeals against refusal of bail and against bail
conditions only. Forfeiture of bail money by virtue of an order of court manifestly falls outside the ambit of the provisions of
the section. It follows, therefore, that the accused cannot appeal
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against such a forfeiture order, [81] and must be content with review proceedings or executive remission of the bail
money. [82]
15.19 New facts arising: appeal conditional

Should new facts arise or be discovered after the magistrate has refused bail, an appeal against such refusal may not be
based on such facts. [83] The new facts must first be placed before the magistrate who refused bail, who may then grant
bail in the light of such new facts. Only if the magistrate's decision again goes against the accused may the appeal be based
on the new facts. [84]
15.20 Bail appeals: procedure [85]

In terms of s 65(3) of the Act the accused is required to give notice of appeal to both the magistrate concerned and the
attorney-general. The accused, if represented, must ensure that proper papers are presented to the court of appeal in
order that it may be apprised of the grounds of appeal and the merits of the application. [86] Notice of appeal must be in
accordance with the requirements set in respect of such notices in the context of criminal appeals generally [87] and should
stipulate the division of the High Court to which the appeal is directed. [88]
Where new facts arise or are discovered after refusal of bail or the imposition of bail conditions by the lower court, such
facts must first be brought to the notice of the magistrate concerned, and an appeal will only lie if the magistrate thereupon
rules against the accused. [89]
Upon receipt of a notice of appeal the magistrate concerned is required forthwith to furnish his reasons for judgment on
the bail application to the court of appeal. [90]
15.21 Review of bail proceedings

It is submitted that bail applications made to police officials and prosecutors under ss 59 and 59A of the Act and those
made to lower courts under s 60 of the Act are all reviewable by a superior court in terms of its inherent (common law) [91]
or statutory [92] powers of review. Such statutory powers are derived from
Page 247
the High Court Rules, which relate not only to the proceedings of 'inferior courts' but also to those of 'any tribunal, board
or officer performing judicial, quasi-judicial or administrative functions'. It is submitted that extra-curial bail applications fall
within the scope of the rule. Despite the fact that the Act provides specifically for appeal procedures in respect of bail
applications, [93] in a number of cases the courts in any event approached such appeals as though they were truly
applications for review. [94]
15.22 Review of supplementation of bail conditions

It is submitted that proceedings in terms of s 62 of the Act, during which the prosecutor seeks a supplementation of the
bail conditions originally imposed, are subject to both common-law and statutory review.
15.23 Review of amendment of bail conditions

Similarly, there is no reason why proceedings in terms of s 63(1) of the Act, during which application is made for
amendment of bail conditions originally imposed, should not be subject to both common-law and statutory review.
15.24 Review of cancellation of bail

There is no reason why proceedings during which the accused's bail is provisionally [95] or finally [96] cancelled should not be
subject to the scrutiny of a superior court in review proceedings. [97] In Pillay v Regional Magistrate, Pretoria [98] it was
accepted that a superior court had both a common-law and a statutory power to review such a case. In Jack v
Vermeulen [99] the court accepted that it had a common-law right of review of such cases. It is submitted that a superior
court's common-law and statutory powers of review will extend to proceedings in terms of s 68A of the Act, where the
accused himself applies for cancellation of bail and refund of the bail money. The section is clearly intended to protect the
accused's dependants from financial hardship in cases where he is in custody or serving a sentence in respect of one charge
while his bail stands in respect of another. If the magistrate irregularly refuses the accused's request, his remedy will be to
take the matter on review.
15.25 Review of forfeiture of bail money

Where the accused's bail has been cancelled and his bail money finally declared forfeited to the state, his only remedies are
to apply for review of the relevant
Page 248
proceedings [100] or to obtain executive remission of the bail money. [101]
15.26 Review of bail proceedings: procedure

As in all cases of applications for review of the proceedings of a lower court, application for review of bail proceedings must
be brought upon notice of motion directed and delivered to the magistrate concerned and to affected parties such as the
attorney-general. [102] The full procedure to be followed is set out in rule 53 of the High Court Rules. [103]
15.27 Appeal against grant or refusal of release on warning

Where the accused applies for and is refused bail his remedy is to appeal in terms of s 65 of the Act. [104] However, where
the accused applies under s 72 of the Act for release on warning in lieu of bail, his application may be refused and bail
granted instead. In such a case the refusal to release the accused on warning is not appealable, for s 65 of the Act offers
appeal as a remedy only where bail has been refused. The same will obtain where bail is not applied for as an alternative: the
refusal of release on warning will be the end of the matter.
The legislature's failure to provide for an aggrieved accused to appeal against a court's refusal to release him on warning
is duplicated in respect of the attorney-general's right of appeal: s 65A of the Act allows the attorney-general an appeal
against the grant of bail but not against an accused's release on warning—a situation which, when viewed from the
prosecution's perspective, may be far more unsatisfactory.
15.28 Appeal against conditions attached to release on warning

Prior to 1986 an accused could be released on warning by virtue of the provisions of s 72 of the Act, without any conditions
being attached to such release. Now, however, a lower court may impose any of the conditions listed in s 62 of the Act. [105]
This provision strengthens the analogy between release on warning and bail, but simultaneously creates an anomaly: where
bail is granted under s 60 the accused may appeal against any condition imposed and by which he feels aggrieved; [106]
however, the Act contains no provision which allows the accused similarly to appeal against a condition coupled with his
release on warning, even though such condition is likely to be identical in nature to those customarily coupled with release
on bail. The incongruous position is therefore that the accused who is released on warning is spared the obligation to
deposit
Page 249
an amount of bail, but may labour under onerous conditions of release without an appeal remedy to relieve his burden; on
the other hand, the accused who is released on bail may appeal against the identical conditions. (In fact, the accused who is
released on warning probably even lacks the right to apply for an amendment of his conditions of release, whereas the
accused released on bail is expressly permitted to apply for such amendment.) [107] The attorney-general's position is no
better: whereas he may, in terms of s 65A(1)(a) of the Act, appeal against the imposition of a bail condition by a lower
court, he has no similar right in respect of a condition attached to an accused's release on warning.
It is to be hoped that the 1986 amendment of the Act will in turn be amended to allow for appeals against conditions of
release on warning, in order that persons on bail and on warning may have the same rights of appeal against aspects of
their pre-trial release, and in order that the attorney-general's rights of appeal may be given consistency.
15.29 Appeal against cancellation of release on warning

Where the accused who has been released on warning fails to comply with such warning or with a condition imposed, [108]
he may be arrested and detained instead of remaining free pending determination of his guilt during his trial. [109] The Act
makes no provision for appeal against such loss of liberty. [110]
15.30 Review of proceedings in respect of release on warning

It is submitted that the accused will be entitled to apply to a superior court for review of application proceedings under s 72
of the Act. Such court will have both common-law and statutory powers of review. It is submitted that the coupling of
unreasonable conditions to release on warning will be in breach of s 35(1)(f) of the Constitution.
15.31 Appeal against placement in place of safety

Section 71 of the Act provides that an accused under the age of 18 years may, in the discretion of a police official [111] or
court to whom an application for bail is made in terms of s 59 or s 60 of the Act, respectively, be placed in a place of safety
instead of being released on bail. It is submitted that the adoption of such a course by a police official or magistrate
amounts to a 'refusal' of bail, and that the order, if made by a magistrate, [112] will be appealable in terms of the provisions
of s 65 of the Act.
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15.32 Review of placement in place of safety

If a police official or magistrate decides to place a juvenile accused in a place of safety rather than granting him bail, the
proceedings in question will be subject to both common-law and statutory review.
[1] Section 65(1)(a) of the Act. See also S v Bhengu 1995 (3) BC LR 394 (D) 397I-J; S v Rens 1996 (2) BC LR 155 (C C ).
[2] C f Harcourt (ed) Swift's Law of Criminal Procedure (1969) 163. That a bail hearing involves the exercise of a discretion by the presiding officer is
clear from cases such as Ellish v Prokureur-Generaal, WPA 1994 (2) SAC R 579 (W).
[3] C f R v Conradie 1907 TS 455; John Rampi v Attorney-General (1) 1933 GWL 11; Sesedi v Attorney-General, Cape Province 1952 (2) PH H175
(C ); Potgieter 1955 (1) PH H31 (O); S v Qhaka 1961 (4) SA 170 (E).
[4] C f Bloomberg 1946 (1) PH H21 (C ).
[5] 1977 (2) SA 531 (A) 542A-B. C f Meer v Attorney-General, Cape Province 1949 (1) PH H26 (C ); Fry v Attorney-General, Transvaal 1954 (3) SA
794 (W); S v Baker 1965 (1) SA 821 (W).
[6] R v Dhlumayo 1948 (2) SA 677 (A). See also Kotzé 1977 De Jure 406 409. But contra Lansdown & C ampbell South African Criminal Law and
Procedure vol v (1982) 333, where the somewhat surprising view is taken that the effect of s 65(4) of the Act is 'that the superior court will interfere
with the magistrate's decision only on one or more of the recognised grounds of review. It will have to be shown that the magistrate has misused his
discretion or misdirected himself.' (Emphasis added.)
[7] S v Ho 1979 (3) SA 734 (W). C f S v Mohamed (above). See also Snyman 1977 THRHR 386 388; Ferreira Strafproses in die Laer Howe (1979) 209.
In the former Bophuthatswana the attorney-general could prevent bail by opposing an application, following which the court was obliged to refuse bail.
However, the entire process was invalidated in Smith v Attorney-General, Bophuthatswana 1984 (1) SA 196 (B). See also Naidu 1985 Obiter 94 99-101.
[8] S v Ho (above) 737H. C f S v Kathrada 1961 (3) SA 593 (T).
[9] 1979 (4) SA 218 (D) 220.
[10] Emphasis added. See also S v Mbele and Another 1996 (1) SAC R 212 (W).
[11] 1980 (4) SA 94 (W) 96H-97A.
[12] The Afrikaans text containing this section is the one that was signed. C f Afrikaanse Pers Bpk v Neser 1948 (2) SA 295 (C ); S v Makoula 1978 (4)
SA 763 (SWA).
[13] Section 65A(1)(b) of the Act (introduced by Act 75 of 1995).
[14] Section 65A(2)(a) of the Act (introduced by Act 75 of 1995). See S v Ramokhosi 1999 (1) SAC R 497 (A) 501b.
[15] C f R v Karrim 1951 (4) SA 385 (N).
[16] It is submitted that, if the amount of bail is so excessive as to defeat the object of bail and thus amounts to a refusal thereof, an appeal will
nevertheless be directed against the conditions of bail and not against a refusal.
[17] 1986 (1) SA 361 (T).
[18] Act 74 of 1982. Although the section is no longer on the statute book, various statutes nevertheless preserve the power of the executive to
promulgate extraordinary measures during times of emergency.
[19] See S v Baleka (above) 373-4.
[20] S v Baleka (above) 378.
[21] S v Baleka (above) 397. Preiss J concurred in this judgment (at 392).
[22] 1985 (3) SA 587 (N).
[23] S v Ramgobin (1) (above) 590.
[24] By Act 76 of 1997, s 3.
[25] Section 309B(1) of the Act.
[26] In S v Steyn 2001 (1) SAC R 25 (C C ).
[27] See, for example, S v Mohammed 1999 (2) SAC R 507 (C ); S v Siwela 1999 (2) SAC R 685 (W); S v Maseko and Others 2000 (1) SAC R 251 (E);
S v Potgieter 2000 (1) SAC R 578 (W).
[28] Above, 510F-I.
[29] See para 15.6 below.
[30] See para 15.7 below.
[31] 1995 (2) SAC R 583 (E).
[32] At 584g-h.
[33] S v Mohamed 1977 (2) SA 531 (A) 539H-540A.
[34] 2002 (1) SAC R 222 (SC A).
[35] At paras [3], [4] and [13]: '[3] . . . Die Wet maak egter geen voorsiening vir 'n appèl deur 'n beskuldigde teen die weiering van borgtog deur 'n
hoër Hof as hof van eerste instansie nie.
[4] Die vraag is gevolglik of daar voorsiening vir so 'n appèl te vinde is in arts 20 of 21 van die Wet op die Hooggeregshof, en indien wel, of vooraf
verlof daarvoor nodig is.
[13] Ek is gevolglik van mening dat . . . bevind moet word dat art 315(4) van die Wet nie 'n appèl ingevolge art 21(1) van die Wet op die
Hooggeregshof uitsluit om teen die weiering van borgtog deur 'n hoër Hof as Hof van eerste instansie na hierdie Hof te appelleer nie. Soos in die geval
van S v Absalom [1989 (3) SA 154 (A)] het die beskuldigde nie hiervoor verlof nodig nie (Absalom se saak op 162B-D).'
[36] Above para [3]: 'Artikel 65 van die Wet maak uitdruklik voorsiening vir 'n appèl na die hoër Hof teen die weiering van borgtog deur 'n laer hof.
Van hierdie appèl is daar ingevolge art 21(1) van die Wet op die Hooggeregshof 59 van 1959 'n verdere appèl na hierdie Hof moontlik, óf met verlof
van die hof a quo óf, indien dit geweier word, met verlof van hierdie Hof (S v Mohamed 1977 (2) SA 531 (A) op 541C -D).'
[37] The SC A is the only court vested with jurisdiction to hear bail appeals from the High C ourt sitting as a court of second instance—see para 15.8
below.
[38] At 542A-B.
[39] 1986 (3) SA 721 (W).
[40] At 723B-G.
[41] Above.
[42] Above.
[43] Act 59 of 1959.
[44] 2002 (2) SAC R 550 (SC A) para [26]: 'Tweedens is daar die kwessie van borgappèlle na hierdie Hof. Soos in die huidige geval, is so 'n appèl
meestal op feite en afleidings daaruit gebaseer en behels nie enige regsvrae nie. So 'n appèl vanaf die uitspraak van 'n Regter van die Hooggeregshof,
as Hof van eerste instansie, kan veel sneller en goedkoper deur die betrokke Volle Bank afgehandel word. Daar is tans nie 'n meganisme waarvolgens
sodanige appèlle na die Volle Bank van die Hooggeregshof gekanaliseer kan word nie. Ek doen aan die hand dat die Departement van Justisie dringend
aandag aan hierdie aspek skenk.'
[45] 2003 (2) SAC R 5 (SC A) para [26].
[46] See, for instance, Ellish (above); S v Dhlamini 1997 (1) SAC R 54 (W); S v Mpofana 1998 (1) SAC R 40 (Tk); S v Mohammed (above).
[47] By Act 75 of 1995, s 7.
[52] See, for example, Fripp v Gibbon 1913 AD 354 363; Kruger Bros and Wasserman v Ruskin 1918 AD 63 65.
[53] R v Lipschitz, R v Green 1947 (2) SA 931 (T) 935. For examples where the courts have indeed ordered the state to pay such costs where the
attorney-general has unsuccessfully appealed against sentence (the principles of such appeal proceedings being on the same footing as those in bail
appeals launched by the state), see R v Skorpen 1950 (2) SA 383 (N); R v Bunting 1954 (2) SA 377 (C ); S v Davidson 1964 (1) SA 192 (T); S v
McKenzie 1967 (1) SA 62 (E).
[54] See, for example, Van Eeden v DPP, Cape of Good Hope 2005 (2) SAC R 22 (C ).
[55] 2003 (1) SAC R 636 (T).
[56] At 641f-g.
[57] Section 65A(2)(b) read with s 316(1) of the Act.
[58] Section 65A(2)(c) of the Act.
[59] Act 56 of 1955, s 96.
[60] Act 56 of 1955, s 97(1).
[65] See the invocation of s 65(1)(a) by s 309(4)(b) of the Act.
[66] See the invocation of s 65(1)(a) by s 307(6) of the Act.
[67] C f s 307(3)(a) of the Act.
[68] C f s 307(3)(b) of the Act.
[69] Section 315(2) of the Act; S v Mohamed (above) 541A.
[70] C f S v Mohamed (above). C ontrast Ferreira 210.
[71] By Harms JA in Masoanganye v S 2012 (1) SAC R 292 (SC A) paras [13], [15].
[72] Act 59 of 1959.
[73] 1946 WLD 386.
[74] See ss 66(3), 67(2)-(3), and 68 of the Act.
[75] 1971 (4) SA 504 (N) 509. C f De Jager v Attorney-General, Natal 1967 (4) SA 143 (D). See also Maqungu v Assistant Magistrate, Whittlesea 1977
(2) SA 359 (E).
[76] This view is apparently not shared by Ferreira 210 (sed quaere). See also Bücher 1985 (June) Bulletin: Current Issues in Law and Public
Administration 21 25.
[77] 1976 (4) SA 290 (T).
[78] 1979 (1) SA 659 (C ).
[79] 1984 (3) SA 885 (C k).
[81] Ex parte Estate Phillips 1958 (1) SA 803 (N); De Jager (above); S v Zibula 1968 (2) SA 596 (E); Jack v Vermeulen 1979 (1) SA 659 (C ).
[84] Ibid.
[85] See, generally, S v Kets 1977 (1) SA 444 (C ).
[86] S v Ho 1979 (3) SA 734 (W).
[87] See s 309 of the Act. However, s 65 of the Act does not prescribe a time limit within which an appeal should be noted. It is doubtful whether any
such limit applies—see S v Mohammed 1999 (2) SAC R 507 (C ).
[88] S v Ho (above).
[90] Section 65(3) of the Act; S v Lenong 1973 (2) SA 81 (O); Kets (above).
[91] Pillay v Regional Magistrate, Pretoria 1976 (4) SA 290 (T).
[92] See Act 59 of 1959, s 24(1); Ferreira 210.
[94] See, for example, Qhaka (above); S v Ho (above).
[95] Sections 67(1)(b), 67(2)(a) of the Act.
[96] Sections 66(3), 67(2)(c), 68 of the Act.
[97] C f Ferreira 210.
[98] 1976 (4) SA 290 (T). For the full judgment, see case no 1308/76 (unreported).
[99] 1979 (1) SA 659 (C ).
[100] Ex parte Estate Phillips (above); De Jager (above); S v Zibula (above); Jack v Vermeulen (above).
[102] Act 59 of 1959, rule 53(1).
[103] Ibid.
[104] See para 14.8.
[108] Section 72(4) of the Act, as amended in 1986.
[109] Ibid.
[110] The accused, once arrested, may be fined or imprisoned for his breach of warning or of a condition. It is submitted that he may appeal against
such punishment in the ordinary way.
[111] The Act omits to extend this discretion to the attorney-general or prosecutor who may grant bail in terms of s 59A of the Act.
[112] There is no similar provision with regard to police bail proceedings.
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16
Extraordinary provisions, powers and proceedings
16.1 Introduction
In Chapters 5 and 7 above the normal or ordinary form of bail application, as provided for in s 59 and s 60 of the Act, was
discussed. It was noted that proceedings directed at obtaining police bail are informal, but that the police official having
jurisdiction is nevertheless required to exercise his discretion judicially and not capriciously; and ordinary bail proceedings in
our courts follow the pattern of adversarial proceedings [1] whereby (a) the accused and the state are mere parties to the
dispute; (b) each party carries an evidentiary burden in respect of certain matters; and (c) the court is required to
adjudicate by a judicial exercise of its discretion. The state's position in ordinary bail applications is therefore that of a
litigant who begs the court's verdict. The attorney-general, in such applications as in any criminal proceedings, is merely the
state's representative who prays for the court's verdict on behalf of the state. [2] Thus, both as an official and as counsel,
he remains an officer of the court who must abide by the court's discretion.
However, in a number of instances created by statute, the attorney-general adopts a different guise, and is given the
power to prescribe to the court. This is an extraordinary state of affairs, which departs completely from that pertaining to
ordinary bail applications. The extraordinary and sometimes drastic powers so conferred are exercised by the attorney-
general by virtue of his office, but such exercise is circumscribed by statute, common law and international law inasmuch as
the attorney-general's qualities as an individual may be said to provide safeguards against prosecutorial favouritism and
excess. In Democratic Alliance v President of the Republic of South Africa [3] the Supreme Court of Appeal provides a
comprehensive treatise on the absolute requirements that the National Director of Public Prosecutions (and by delegation or
extension, it is submitted, the attorney-general) should be a fit and proper person to hold his office, should be of
unblemished integrity, and should be a beacon of prosecutorial independence.
The extraordinary power once held by the attorney-general in terms of the now repealed s 61 of the Act to prohibit the
granting of bail by a court of law, is a thing of the past. However, other extreme powers have survived the advent of
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constitutional democracy. Thus, s 185 of the Act allows a judge in chambers to cause a witness to be detained in certain
circumstances, upon information placed before him by the attorney-general—and until recently such a person could not
thereafter be released on bail or otherwise. Another instance of extraordinary proceedings is the detention and conditional
release of witnesses under s 184 of the Act. In addition, the attorney-general has been given certain powers relating to the
bail process which elevate him from a mere participant to a position akin to being a judge in his own cause.
One is prompted to ask why such measures are (or were until recently) to be found on our statute book if, as Milne JP
pointed out in S v Ramgobin (2), [4] the right to apply for bail is an 'ancient and fundamental' right which has traditionally
been left to be determined by the courts. The following remarks [5] by the learned Judge President (made with regard to
former security legislation which empowered the attorney-general to prohibit bail in certain cases) sum up the erosion of the
powers of the courts and the complete absence of logic in the argument that such statutory measures are necessary:
W hen it is the courts w hich decide on the major question of innocence or guilt and of sentence, I cannot understand w hy it has been
decided that in certain circumstances the courts must be precluded from deciding questions of bail. The courts exist for these
purposes. It is their function and not the function of the executive. No doubt in deciding w hether or not to issue an order in terms of
s 30 [of the Internal Security Act, 1982], the Attorney-General acts in good faith on information furnished to him by others, including
the police. That information may be accurate, honest and reliable. On the other hand, it may be factually incorrect, or it may involve
the draw ing of inferences w hich are not justified on the facts. The Attorney-General cannot test this information. He cannot conduct a
trial. Of course, he w ill carefully sift the information before him but he hears only one side, and the accused are not given an
opportunity to test this information. If the case made to him for denying bail has been so overw helmingly convincing that an Attorney-
General felt able to take the grave step of acting on it w ithout hearing the other side, surely it w ould be equally convincing to a court
and surely it w ould stand up to cross-examination and countervailing evidence on behalf of the accused. As Mr Justice Friedman said:
'W hen circumstances w arrant, enquiries into matters affecting security in the State and the maintenance of law and order by the
courts can be conducted in camera.'
I w holly fail to see the purpose or necessity for this legislative curtailment of ancient and fundamental rights, nor can I see any
occasion under w hich its use could be justified.
In S v Ramgobin (1) [6] a Full Bench of the Natal Supreme Court expressed severe criticism of the provisions of s 30 of the
Internal Security Act, 1982, which granted the attorney-general these extraordinary powers. As appears from the following
passages, such criticism has not been expressed gratuitously on the vague (however admirable) ground that one's right to
liberty warrants criticism of all that may infringe it. The court sets out the traditional role of the courts and
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of the executive (and the attorney-general), and stresses the jealousy with which the courts guard their prerogative to
dispense justice and repulse any encroachment on their domain: [7]
Traditionally in our system of jurisprudence applications for bail are determined by courts of law . By balancing the need to preserve
the liberty of the individual w ho is presumed to be innocent until proven guilty, on the one hand, and the interests of the due
administration of justice, on the other hand, the courts w ill decide w hether or not a person w ho is in custody aw aiting trial, should or
should not be released pending that trial. W hen an application for bail is opposed by the prosecuting authority (usually the Attorney-
General or his representative), the court w ill consider the grounds upon w hich such opposition is based and give its decision
accordingly—to refuse bail, or to grant bail unconditionally or, if circumstances w arrant it, subject to w hatever conditions it may
consider just to cater for the legitimate fears of the prosecuting authority. It is right and proper that the courts should exercise this
power. It is only through the courts exercising their powers fearlessly and impartially, that a proper balance can be achieved between the
interest of the individual's liberty and the interest of the State in bringing alleged wrongdoers to justice. And the courts in this country do
so exercise their pow ers entirely free from any direct or indirect pressure or influence from the State, the Legislature, or the Executive
branch of Government. So basic is all this, that the courts w ill, insofar as they are legally able to do so, resist any attempts to lessen
or minimise their pow ers and role in this regard.
In s 30 of the Internal Security Act 74 of 1982, the Legislature has restricted the traditional role of the courts. . . .
[Its provisions] constitute serious inroads into the traditional role of the courts. Why the Legislature should have found it necessary
thus to place in the hands of the Attorney-General a power which ought properly to repose in the courts is not clear. It w ould seem that,
although the usual reasons for courts to refuse bail concern either the fear that the accused might not, if released on bail, stand trial
or that he might interfere w ith potential State w itnesses, these reasons are not exhaustive. It has been held, in a number of cases,
that the courts w ould have the right, w here circumstances w arrant it, to refuse to release an accused on bail w here to do so might,
for example, constitute a threat to the security of the State or interfere w ith the maintenance of law and order. . . .
Nor do I like the provisions of s 30(1) and 30(2)(a). It is to me a complete anathema that an Attorney-General should be, at least in a
manner of speaking, a judge in his own cause. He is not an independent officer; unlike the courts, he does not exercise his powers free of
executive control. (Emphasis added.)
It is true that the extraordinary powers given the attorney-general by the current legislation are less drastic or absolute
than those he enjoyed under the former security legislation (and the now-repealed s 61 of the Act), referred to above.
However, it is suggested that the criticism and caveat voiced in the above passages excerpted from the Ramgobin
judgments remain apposite.
The extraordinary proceedings and powers referred to above are discussed in the following paragraphs. It should be
noted, however, that the list is neither exhaustive nor static.
16.2 Arrest and detention of witnesses: s 184(1), (2) and (4)

Any witness who is 'likely to give material evidence' with regard to an offence other than those listed in Part III of Schedule 2
to the Act, may be arrested
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pursuant to a warrant issued by a magistrate, regional magistrate or judge, on the strength of written information on oath
to the effect that the witness is about to abscond. [8] Thus, there are several distinct jurisdictional facts that require to be
satisfied before an arrest may be legitimately effected: the person must be (a) objectively likely to give evidence that (b) is
material and (c) relates to an offence other than one listed in Part III of Schedule 2; (d) information that the person (e) is
about to abscond must be placed before the judicial officer in question and must be both (f) in writing and (g) under oath.
The witness is then brought before the judicial officer in question, and warned to appear to give evidence at a stated time
and place. [9] Once warned to appear, the witness may then be released on warning on any condition mentioned with regard
to bail in s 62 of the Act, with the exception of a condition that he may not communicate with state witnesses. [10] A breach
of conditions may result in cancellation of his release in accordance with the provisions of s 66(1), (3) and (4). [11] Moreover,
a breach of conditions is punishable by a fine of R100 or imprisonment of six months. [12]
Any magistrate, regional magistrate or judge of the court before which criminal proceedings are pending may issue a
warrant for the arrest of a potential material witness in such proceedings if it appears, on written information on oath, that
the witness is evading service of the relevant subpoena. [13] The provision does not confine the judicial officer concerned to
pending proceedings with regard to certain offences only, [14] and includes any criminal proceedings such as preparatory
examinations. [15] Upon the arrest of the witness the provisions of s 184(2) and (3) will apply mutatis mutandis. [16]
16.3 Detention of witnesses: s 185

Owing to the presumption of innocence and the high premium which is placed on the liberty of the individual in most legal
systems, a person's incarceration is usually countered by the fact that the law makes provision for his release, whether on
bail or otherwise. Thus, with the exception of detentions under the former security legislation of this country, [17] persons
suspected or accused of having committed a crime and taken into custody have customarily been offered the opportunity of
release on bail or on warning. [18] An exception to this custom is found in s 185 of the Act. That section provides for the
detention of a potential witness with regard to an offence listed in Part III of Schedule 2 to the
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Act [19] if the attorney-general obtains a detention order from a judge in chambers. [20] This is done by way of an affidavit in
which the attorney-general avers that information at his disposal [21] (which he must place before the judge) [22] reveals
that the witness is in danger or may abscond or be tampered with or intimidated, [23] or that the attorney-general deems
the witness's detention to be in the interests of the witness or of the administration of justice. [24]
More drastic still is the provision that allows the attorney-general, when in his opinion time is of the essence, himself to
issue a detention order which remains in force for 72 hours. [25] The inclusion in s 185(1)(a) and (b) of the Act of the words
'in his opinion' means that the attorney-general need not be 'satisfied', [26] nor need he have 'reason to believe', [27] that
the interests of justice will be jeopardised by delay. This discretion given the attorney-general may be termed a 'free
discretion' [28] as opposed to the fettered discretion which is offered by the words 'satisfied' and 'reason to believe'. Thus
far our courts have interpreted the words 'in his opinion' as meaning a subjective opinion which is subjected to no other
test than the bona fides criterion. Thus, so long as the attorney-general's opinion is bona fide, it will be good, for in the
absence of mala fides the court cannot interfere. [29] It is submitted that this traditional approach by our courts is outdated
in an age which has seen a proliferation of administrative organs exercising 'free discretion', and is rightly called 'reluctant'
and 'inhibited' by Wiechers, [30] who propagates that courts should go into the merits of opinions upon which administrative
bodies base their actions. [31] It must be accepted 'that there is no such thing as an unfettered discretion. An unfettered
discretion in the sense of a legally unrestrained freedom to do anything, is irreconcilable with the concept of a state founded
on law. . . . [32] It is submitted, therefore, that the attorney-general's opinion may not be arbitrary or fanciful, but that it
must be based on fact. [33] As a corollary, it may be stated that his opinion must be reasonable. In order to test his
opinion, the courts need not substitute their
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opinion for his; [34] they need only test the factual basis and reasonableness of the opinion in order to determine whether
the exercise of his discretion was correct in law. [35]
Until 1996 courts were entitled to order the witness's release when his detention was ordered by the attorney-general,
but not if it was ordered by a judge [36] at the attorney-general's behest. This meant that a witness's detention could not
be terminated by his release on bail or warning, except in limited circumstances; or through the circumstances arising in s
185(4) of the Act. This latter sub-section, which is still in force, reads as follows:
Any person detained under a w arrant in terms of sub-section (2) shall be detained for the period terminating on the day on w hich the
criminal proceedings concerned are concluded, unless—
(a) the attorney-general orders that he be released earlier; or
(b) such proceedings have not commenced w ithin six months from the date on w hich he is so detained, in w hich case he shall be
released after the expiration of such period.
Where a judge has therefore issued a warrant for the detention of a witness in terms of s 185(2) of the Act, the express
terms of sub-section (4) preclude the release of the detainee until the day on which the criminal proceedings are concluded;
or the attorney-general has ordered his earlier release; or the state is in default by not commencing the criminal
proceedings within six months of the witness's detention.
In Thuntsi v Attorney-General, Northern Cape [37] the applicants had been detained under a warrant issued by the
attorney-general in terms of s 12B(1) of the Internal Security Act 44 of 1950, as potential material witnesses in connection
with a contravention of s 2(1)(c) of the Terrorism Act 83 of 1967. The detention clause, which corresponds substantially
with s 185(4) of the Act, was held not to allow for the release of the witnesses prior to the conclusion of the trial (and in the
absence of earlier release by the attorney-general), even though the state case had been concluded and their evidence not
led. Although the provisions of s 185(8) of the Act, which prohibited the release of such a detainee by a court, have been
repealed, the wording of sub-section (4) strongly suggests (in mandatory terms) that a detainee's release may only occur in
the circumstances described in the sub-section. However, it is submitted that the repeal of sub-section (8) in 1996 has
opened the way for High Courts, in the exercise of their inherent jurisdiction, to release a detained witness on bail (and has
simultaneously brought s 185 of the Act in line with s 34 of the Constitution, which provides that 'everyone has the right to
have any dispute that can be resolved by the application of law decided in a fair public hearing in a court.)
Steytler [38] criticises the 'constitutional shortcomings with regard to procedural aspects of s 185' and then continues:
Page 257
. . . [T]he justness of detention under this provision is also open to doubt. First, persons subjected to this pow er need not be material
w itnesses. Second, after discounting the legitimate concerns of a threat to personal safety to the 'w itness', or that he or she may
abscond, be tampered w ith or intimidated, it is difficult to conceive w hat possible legitimate content can be given to the sw eeping
phrase that detention 'w ould be in the interests of the person concerned or of the administration of justice'. W ith no identifiable
content, the justness of the cause cannot properly be assessed. Third, the pow er to detain a person until the completion of the
proceedings may result in the detention of a person after his or her testimony has been given, thus serving no legitimate purpose.
It is difficult to understand the purpose of the drastic provisions of s 185 of the Act. It was suggested in S v Heyman [39]
that the paramount interests supposedly protected by the section are those of the witness and the interests of justice, [40]
while in S v Weinberg [41] it was stated that detention for purposes of interrogation was not the purpose of the section's
predecessor (although the witness could be questioned [42] and asked to make a statement). [43] These powers, including
the power to question the detained witness [44] are analogous to the odious former security legislation, now repealed. [45]
The sweeping powers of the attorney-general are furthermore reflected in the authority extended to him to ensure the
detention of a witness notwithstanding that criminal proceedings have neither commenced nor are pending, provided only
that he believes in good faith that they are likely to be instituted; [46] in the ouster of judicial scrutiny and action with regard
to the well-being or continued detention of a witness; [47] and in his effectively ensuring that the witness remains
incommunicado. Thus, in Mhlongo [48] Didcott J said the following with reference to s 185(5) and (8):
W hat on earth, one asks oneself, can be the conceivable point of the provisions of sub-sections (5) and (8) in relation to somebody
w ho is being kept in custody for his ow n protection and in his ow n interests? Is the idea behind it, one w onders, to ensure that
threats are not communicated to a person in custody by someone visiting him, or that tampering w ith him is not attempted by any
such person? [49] If that is the fear, surely the w ay to deal w ith it is not to place an embargo on visits, but simply to have a policeman
present throughout them.
It is submitted that s 185(5) of the Act, which excludes access to a detained witness by his legal representative, spouse or
partner, next of kin, chosen
Page 258
religious counsellor and chosen medical practitioner, in a number of respects falls foul of s 35(2) of the Constitution.
Inasmuch as the provisions of s 185(4) of the Act are to be taken to mean that the right to bail (or at least to apply to a
judge for bail) is similarly excluded, it is submitted that that sub-section, too, is unconstitutional. Of scant comfort are the
toothless provisions of s 340 of the Act, as they do not temper the effects of s 185, nor do they offer a remedy to the
courts:
Every head of a prison w ithin the area for w hich any session or circuit of any superior court is held for the trial of criminal cases shall
deliver to that court at the commencement of each such session or circuit a list—
(a) of the unsentenced prisoners w ho, at such commencement, have been detained w ithin his prison for a period of ninety days or
longer; and
(b) of w itnesses detained under section 184 or 185 and w ho, at such commencement, are being detained w ithin his prison,
and such list shall, in the case of each such prisoner and each such w itness, specify the date of his admission to the prison and the
authority for his detention w hich shall, in the case of a w itness, state w hether the detention is under section 184 or 185, and shall
further specify, in the case of each prisoner, the cause of his detention.
Thus, the section enjoins record-keeping by custodial authorities in respect of detainees who have spent at least 90 days in
custody, and periodic transmission of such data to the High Court under whose jurisdiction the prison concerned falls.
Significantly, the section excludes detainees held in police cells or in any other detention facility, with the result that the
most suspect of detentions is likely to escape the scrutiny of the courts.
16.4 Detention in terms of anti-terrorism legislation: recent history

Prior to the advent of a constitutional democracy in South Africa, our statute book was disfigured by provisions which
represented the most appalling breaches imaginable of the rule of law. In terms of the infamous 'section 6' [50] and its
equally odious successor, s 29 of the Internal Security Act, [51] any commissioned police officer was empowered to detain
any person who he believed had information regarding an offence. His belief need not have been substantiated, and could
lead to the detention of a detainee in solitary confinement for an indefinite period. A detainee was entitled to release only if
the Commissioner of Police ordered it on the grounds that the detainee had answered satisfactorily all questions put to him
during interrogation, or that no useful purpose would be served by his further detention. This state of affairs prompted the
following question: when was the stage reached where it could be accepted that the detainee would not answer questions
and that, therefore, his further detention would serve no useful purpose? [52] And conversely: what made the police believe
that a person who had steadfastly refused or been unable to
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furnish answers within the initial period of detention would furnish those answers if detained for a further period? It has
been submitted [53] that 'the very system of detention in solitary confinement, coupled with certain interrogation
techniques, supplies the reason for the confidence of the police that, if held for long enough, “the bird will sing”'. In short,
the so-called anti-terrorism legislation in question constituted nothing more than a torturer's charter. Thus, the following
comment has been made with regard to s 6 of the Terrorism Act 1967: [54]
[T]he very purpose of the detention clause . . . is to procure evidence by w ay of torture. It is an accepted fact in any civilised land but
ours that solitary confinement over a long period even if unaccompanied by any of its possible frills, is torture per se.
Whether or not the objective of traditional South African detention clauses has been to sanction or encourage solitary
confinement or its potential accompanying 'frills', it has been established in our law that 'third degree' interrogation in the
sense of 'severe and prolonged cross-questioning designed to overcome the powers of resistance of the person being
interrogated' [55] was unlawful. [56] Thus, in Gosschalk v Rossouw [57] Corbett J (as he then was) held as follows:
The invasion of the rights of the individual necessarily involved in police interrogation must, how ever, be strictly limited. . . .
In the present case I do not find it necessary, at this stage, to define w ith precision the limits to w hich the security police may go in
interrogating detainees under sec 215 bis, such as the applicant. Obviously they are not entitled, in order to induce a detainee to
speak, to subject him to any form of assault or to cause his health or resistance to be impaired by inadequate food, lack of sleep,
living conditions or the like. Nor may they resort to methods of interrogation commonly referred to as the 'third degree'. It has been
held that these limitations exist in regard to the questioning of persons detained under the 'ninety-day clause' . . . : a fortiori they
w ould apply to the ordinary right of the police to interrogate persons. In this context I understand the term 'third degree' to refer to a
severe and prolonged cross-questioning designed to overcome the pow ers of resistance of the person being interrogated.
Undaunted, it seems, our legislature embarked on the process of drafting anti-terrorism legislation [58] which could only
have been conceived in flagrant disregard for the aforementioned judgments of our superior courts and indifference to the
rule of law. It is further submitted that such proposed legislation was overtly designed to create the time and space which
the police might need in order to induce an unwilling possessor of information to talk. Thus, clause 16(1) of the Anti-
Terrorism Bill, 2000 read as follows (echoing
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some of the worst legislative excesses of the previous regime):

16(1) W henever it appears to a judge of the high court on the ground of information submitted under oath by a Director of Public
Prosecutions, that there is reason to believe that any person possesses or is w ithholding from a law enforcement officer any
information regarding any offence under this Act the judge may, at the request of such Director, issue a w arrant for the detention of
such a person and subject to such conditions as the judge may determine, w hich conditions may be amplified or amended by such
judge or any other judge from time to time.
(2) Notw ithstanding anything to the contrary in any law contained, any person detained by virtue of a w arrant under sub-section
(1), must as soon as possible be—
(a) taken to the place mentioned in the w arrant,
(b) furnished w ith the reasons for such detention, and
(c) detained there,
for interrogation until—
a judge orders his or her release if satisfied—
(aa) that the detainee has satisfactorily replied to all questions under interrogation; or
(bb) that no law ful purpose w ill be served by further detention; or the detention period referred to in sub-section (4) [that is, 14
days] has expired.
Clause 16(9) of the Bill provided that 'no bail may be granted to a detainee, nor is such detainee entitled to appear in court
to apply for bail'. It is astonishing that such a clause could ever have been contemplated under our Constitution. It is
noteworthy that the detainee concerned will not have committed an offence, nor will he even have been suspected of an
offence; in fact, he may not even possess a scrap of information which might be of any interest to the police. Yet his right
to bail and indeed his right of access to a court in order to apply for bail would have been denied him by the proposed
legislation. A detainee would endure this state of affairs for the full period of fourteen days' detention, unless he responded
satisfactorily to his interrogation (or 'no lawful purpose' would be served by his further detention). Such proposed
legislation was a recipe for abuse in the form of 'third degree' and torture for, as was asked at the beginning of this
paragraph, what would make a person who has refused or been unable to furnish answers within, say, the first thirteen
days of detention, furnish those answers if detained for longer? A further question arises: why can the interrogation not
provide satisfactory results if the detainee is released on bail and is required, as a condition of bail, to present himself for
questioning during reasonable hours?
It should be noted further that nothing in the proposed legislation precluded the detention of a detainee for a further
period of fourteen days, if such were duly authorised. The proposed provision that a detainee could be legally represented
during interrogation paid mere lip service to the Constitution and was of scant comfort: few legal representatives would be
able to attend upon their client night and day for a period of fourteen days; and few detainees would be able to afford such
continuous and extraordinary representation.
It is submitted that the proposed legislation was fundamentally in breach of the constitutionally entrenched right 'not to
be detained without trial' [59] and the constitutional right to bail (as curtailed as that may be).
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The Anti-Terrorism Bill, 2000 made two further references to bail: first, clause 18(2) provided that, if the state was not
ready to commence with the presentation of its case within sixty days of preferring a charge, and had failed to take all
reasonable steps to commence timeously, the court must strike the case from the roll and release the accused, or if the
accused had already pleaded, release him on bail or on warning. This, of course, was a refreshing innovation, and could be
usefully extended to all charges (and not only those brought under the anti-terrorism legislation) through incorporation into
s 60 of the Act.
Second, clause 20 provided that, where the accused stood trial on a charge proposed in the Bill, 'the provisions relating
to bail in the Criminal Procedure Act apply as if the accused is charged with an offence referred to in Schedule 6 of that Act'.
Considering the width of the definition of 'terrorist act' in the Bill (it is wide enough to include a minor assault or even a
threat of violence as well as the infliction of minor damage to property), it is astounding that a person so accused could be
denied bail unless he could show exceptional circumstances which would permit his release. It would have been too much to
expect the Constitutional Court, in the light of its decision in S v Dlamini, [60] to rule unconstitutional such an unwarranted
infringement of the right to liberty and bail.
16.5 Detention in terms of anti-terrorism legislation: current law

Mercifully, the Anti-Terrorism Bill, 2000 was never promulgated. Instead, the splendidly named Protection of Constitutional
Democracy Against Terrorist and Related Activities Act [61] ('the 2004 Act') was passed in 2004. Immediately noteworthy
from the structure and content of this statute is the complete absence of provisions relating to detention for purposes of
interrogation or seeking to prevent bail in the case of arrest. In that respect it is incomprehensible (but ultimately
commendable) that the same legislature could conceive the Bill of 2000 and thereafter the 2004 Act, the relevant section of
which relating to arrest reads as follows:
15(5) W henever the National Commissioner receives information from an appropriate government body of a foreign State that a
person w ho is alleged to have committed or is convicted of or is sentenced in respect of any Convention offence in respect of w hich—
(a) a court in the Republic has jurisdiction as referred to in subsection (1); or
(b) any court in a foreign State may have jurisdiction,
may be present in the Republic, the National Commissioner must cause such measures to be taken as he or she may deem necessary
to investigate the matter.
(6) W here it appears on reasonable grounds from the investigation referred to in subsection (5) that extradition or criminal proceedings
may be instituted against such person, that person may be arrested as contemplated in section 40(1) of the Criminal Procedure Act 1977
(Act No. 51 of 1977), in order to ensure his or her presence at such proceedings.
(7) The National Director must, upon an arrest contemplated in subsection (6), promptly be notified thereof by the police official
effecting such arrest.
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(8) Upon being notified in terms of subsection (7), the National Director must promptly notify any foreign State that might have
jurisdiction over the offence in question, either directly or through the Secretary General of the United Nations—
(a) of the fact that the person is in custody;
(b) of the circumstances that justify the person's detention; and
(c) w hether he or she intends to prosecute the person,
w ith a view to the surrender of such person to a foreign State for prosecution by that State, should the National Director decline to
prosecute.
(9) The provisions of this section must be exercised subject to the provisions of the Extradition Act, 1962 (Act No. 67 of 1962). (Emphasis
added.)
It is apparent from the above that the 2004 Act does not seek to effect the arrest and detention without trial of a person
who falls within the reach of the section. Rather than create its own provisions with regard to extraordinary powers of
arrest and detention, s 15(6) stipulates that the arrest should be carried out in accordance with s 40(1) of the Act, which
permits arrest without a warrant. This, of course, is in itself significant: the 2004 Act does not concern itself with the well-
established duty of only arresting by virtue of a warrant and resorting to the latitude granted by s 40(1) of the Act only in
special circumstances. There do not appear to be any cogent reasons why the requirement of an arrest warrant has been
summarily circumvented by the 2004 Act.
However, it is also important to note that the jurisdiction of the courts has not been ousted by the 2004 Act, and it may
be accepted that arrests carried out in terms of s 15(6) will be carefully scrutinised by the courts, as arrest without warrant
confers an exceptional power on police officials and constitutes a material infringement of the rights to liberty and
dignity. [62] In particular, the courts are likely to focus on the reasonableness of the arrest, and specifically the question
whether there has been compliance with the 'reasonable grounds' requirement of s 15(6). Such 'reasonableness' will be
judged objectively, which means that the conduct under scrutiny will have to be reasonable from an objective perspective
and cannot be saved by a claim of good faith. [63]
Significantly, the arrest must be carried out specifically with the aim of ensuring the person's presence at the criminal or
extradition proceedings contemplated. This is a stark and welcome departure from the Bill's intentions of detention for the
purpose of interrogation. Once arrested, the pointed reference in s 15(6) to the employment of measures provided for by
the Act strongly suggests that the arrestee will be further dealt with in terms of the Act by a court presiding over criminal
proceedings, and in terms of the Extradition Act [64] by a magistrate officiating at an extradition enquiry. [65] This would
bring
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into operation s 60 of the Act with regard to a bail application made in a criminal court, and ss 9-12 of the Extradition Act
with regard to bail sought at an extradition enquiry. [66]
Which sub-sections of s 60 of the Act, however, would apply? The Schedule to the 2004 Act stipulates that Schedule 5
(and therefore s 60(11)(b) of the Act) applies to bail applications made in respect of charges relating to contraventions of ss
4(2), 4(3), 13 and 14 of the 2004 Act; and that Schedule 6 (and therefore s 60(11)(a) of the Act) applies to bail
applications made in respect of charges of contraventions of ss 2, 3(2)(a), 4(1), 5, 6, 7, 8, 9, 10, and in certain
circumstances 14, of the 2004 Act. These offences have been incorporated into Schedules 5 and 6, respectively, to the Act.
There can be no question of Schedule 5 or 6 to the Act applying to charges relevant at an extradition enquiry.
Accordingly, the usual considerations will apply with regard to bail sought pending extradition (or pending the extradition
enquiry). [67]
16.6 Extraordinary position of the attorney-general

It is reiterated that owing to the inconsistent usage of the terms 'attorney-general' and 'DPP' in the Act, 'attorney-general'
is used throughout in this work in the interests of clarity and consistency. Considering the attorney-general's position as
the representative of one of the parties to adversarial proceedings such as a bail hearing, [68] he has been given some
unusual powers by the Act in its amended form. Thus, for instance, s 59A of the Act empowers the attorney-general or a
prosecutor authorised thereto in writing by him, to permit the release of an accused person on bail (provided that this is
done in consultation with the investigating officer). Although, in a sense, this provision permits the attorney-general to be a
judge in his own cause, the innovation is to be welcomed. In point of fact, it is suggested that this power should be liberally
exercised by the attorney-general and his representatives in order to ease the workload of the reception courts and, more
importantly, to curtail the amount of time an arrestee unnecessarily has to spend in custody. It is further suggested that
the offences in respect of which the attorney-general and his representatives have been thus empowered, as set out in
Schedule 7 to the Act, should be considerably extended to achieve the aforementioned advantages.
The attorney-general or a prosecutor authorised by him is also given an extraordinary power by s 50(6)(c) of the Act, [69]
which reads:
(c) The bail application of a person w ho is charged w ith an offence referred to in Schedule 6 must be considered by a magistrate's
court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in w riting by him or her
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may, if he or she deems it expedient or necessary for the administration of justice in a particular case, direct in w riting that the
application must be considered by a regional court.
Thus, the attorney-general (or a delegate) may in writing direct the transfer of a bail application in respect of a Schedule 6
offence from the district court to the regional court, if he deems it expedient or necessary. (A similar power prior to the
amendment of the section in 2000, whereby the attorney-general could effect the transfer of a bail application from the
regional court to the district court, could only be exercised 'should the former exceptionally not be available to hear the
application'. The section currently, however, requires no exceptionality, but leaves it to the whim of the attorney-general to
effect the transfer in question.) While this provision may well have been intended to be one of practical expediency in order
to streamline the bail process and expedite the hearing of bail applications, it nevertheless extends an extraordinary power
to the prosecuting authority to confer, in effect, jurisdiction upon a court to hear a matter which it would otherwise not be
entitled to do.
The attorney-general is entrusted with a further quasi-jurisdictional power by s 60(11A) of the Act, which permits him
—'irrespective of what charge is noted on the charge sheet'—to issue a written confirmation to the effect that he intends to
charge the accused with an offence referred to in Schedule 5 or 6. Such a written confirmation constitutes prima facie proof
of the charge to be brought against the accused, [70] and in this manner the attorney-general not only determines by
default that the accused's bail application should be heard (in Schedule 6 cases) by a regional court, but also effectively
determines that the accused should bear the onus in accordance with s 60(11) of the Act.
The discretion also resides in the attorney-general or prosecutor, in terms of s 60(14) of the Act, to deny the accused
who applies for bail access to any information, record or document relating to the offence with which he is charged and
which is contained in a police docket. [71] Prosecutors rarely seem to exercise this discretion in favour of the accused, and
appear to withhold the information contained in the police docket from the accused as a matter of principle and course. The
discretion given to the prosecuting authorities is therefore not so much one of having the power to direct that the contents
of the police docket should be disclosed to the accused but rather the converse, namely the discretion and power to seal
the contents of the docket.
In Botha v Minister of Safety and Security; January v Minister of Safety and Security [72] the court remarked as follows:
[32] Relative to the prosecutors, they ow e a duty to carry out their public functions independently and in the interests of the public. In
doing so he or she is obliged to act in
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accordance w ith the requirements of the Constitution and has to have regard to the rights of the accused person. Such rights include
the accused's rights to bail and not to be detained arbitrarily and w ithout just cause. Although the question of bail consideration is
pre-eminently a matter for the judicial officer, the information furnished to the judicial officer can but come from the prosecutor. The
latter has a duty to place before court any information relevant to the exercise of the discretion w ith regard to the granting or refusal
of bail.
[33] Prosecutors also have a duty to establish facts w hich justify the further incarceration of a detained person before he or she can
apply to the court for the detainee's further incarceration. One of the methods expected to be used by the prosecutor is to establish,
from the police official investigating the case, all the facts w hich w ould justify the further detention of the arrested person. He or she
has to protect the public interest, act w ith objectivity, take proper account of the position of the suspect and the victim, and pay
attention to all relevant circumstances, irrespective of w hether they are to the advantage or disadvantage of the suspect. The same
holds true in our country, especially in view of the principle of legality recognised in s 1(c) of the Constitution w hich describes the
supremacy of the Constitution and the rule of law as one of the foundational values of the Republic of South Africa. The doctrine of
legality, w hich requires that public pow er should have a source of law , is applicable w henever public pow er is exercised and the public
pow er must comply w ith the Constitution w hich is our country's supreme law .
[34] In the present case, if the docket contents did not include information justifying the further detention of the plaintiffs herein, the
prosecutor w ould have had a duty to establish from the investigator the facts w hich w ould justify the further detention of the
plaintiffs. His failure to do so, and in the event that there w ere no such facts justifying further detention of the plaintiffs, the
prosecutor w ould have acted unlaw fully in applying for further detention of the plaintiffs.
16.7 Private prosecutions

When the attorney-general has declined to prosecute a person on a specific charge, and has issued a certificate nolle
prosequi to that effect, anyone with a 'substantial and peculiar interest' in the trial issue by virtue of personal prejudice
suffered in consequence of the crime committed, may institute a private prosecution in respect of such charge. [73] The
reference here is to private individuals as private prosecutors. There is no provision in the Act for such a private prosecutor
to secure the accused's attendance at court by means of a warrant of arrest; it is therefore incumbent on the private
prosecutor to proceed by means of summons procedure [74] in accordance with the provisions of s 54 of the Act, and the
question of bail does not arise.
The Act further provides for private prosecutions to be instituted by virtue of the exercise of statutory powers (for
instance, by public authorities). [75] Such prosecutions are also initiated by means of summons, and the question of bail
does not ordinarily arise. However, should the accused fail to obey a summons properly executed, he may be arrested and
brought before court, in which event
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the accused may apply to be released on bail pending an inquiry or prosecution for failure to appear. [76] It must be borne in
mind that the accused who is subject to a private prosecution is equally entitled to a constitutionally fair trial as the accused
who is prosecuted by the state. [77]
16.8 The interdictum de homine libero exhibendo (habeas corpus)

Since the advent of a democratic constitutional dispensation in South Africa, the noxious practice of legislatively sanctioned
detention without trial has been outlawed. The notorious 90-day and 180-day detention clauses contained in the erstwhile
[78]
security legislation [78] have been repealed, and it is submitted that any similar provision will today be hard-pressed to pass
constitutional muster. It may be thought that the provisions of s 60(11)(a) of the Act, which introduced an onerous reverse
burden of proof (and moreover one that requires the accused to prove a negative), came perilously close to being ousted
on constitutional grounds. However, as was pointed out in Chapter 7 above, the Constitutional Court in S v Dlamini [79]
disappointingly gave the section its stamp of approval. As was submitted in para 16.3 above, the detention of witnesses in
terms of s 185 of the Act will probably be declared unconstitutional if challenged. In addition to the offensive content of s
185, it is not inconceivable (as proved by experience) that other, inoffensive clauses of the Act (and possibly other
legislation) may be abused so as to detain suspects beyond the period allowed by law, [80] or to arrest and detain them for
a purpose other than to bring them to court. [81] In such circumstances such a detainee has no opportunity to apply for
bail, as no court appearance takes place (or the suspect is not brought to court timeously for first appearance and a
possible bail application). Is there a remedy available to secure the detainee's release and thus protect and assert his
constitutional right to liberty?
At common law a remedy has been available for centuries, both from the English source and its Roman-Dutch
counterpart. The English remedy is known as the 'writ of habeas corpus', and was created by the Habeas Corpus Act 1679.
The Roman-Dutch equivalent is known as the interdictum de homine libero exhibendo. [82] As their names imply, these
remedies concerned the showing of the 'body' of a detained person to a court in order to prevent disappearances and
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unlawful detention, and introduced a process of mandatory interdict for the purpose. [83] There is no material difference
between the two remedies, and both are used in our courts. [84]
Under the Constitution the two interdicts ensure a remedy where a prima facie unlawful deprivation of liberty has taken
place. Section 35(2)(d) of the Constitution, in turn, protects the common-law remedies against 'legislative
encroachment' [85] by entrenching every detained person's right to challenge the lawfulness of his detention in a court of law
and to be released from custody if his detention is found to be unlawful. Thus it is important to note that a remedy is
available to secure the release of a person unlawfully detained, in circumstances where the detention does not allow for an
application for bail, either because the circumstances fall outside the ambit of s 60 of the Act, or the detainee is being held
incommunicado or in circumstances that do not allow for his appearance in court to apply for bail. In terms of the two
common-law remedies, and also in terms of the Constitution, an interested party may move for an interdict to have the
detainee brought before a court. [86] The detainee's release is not effected under Chapter 9 of the Act, and accordingly
release will not be conditional upon payment of bail.
16.9 Bail procedures prompted by prison conditions: general

Many studies have been undertaken with regard to the state of our prisons. Without exception, they depict prison
conditions which are frankly unacceptable for any inmate—least of all those who are awaiting trial and are presumed to be
innocent. In 2001 Davis J, in the course of his judgment in a so-called 'prison murder' in S v Mark, [87] made the following
observations:
This case has throw n into sharp relief the state of the Department of Correctional services. . . .
I am not unaw are of, nor am I unsympathetic to the plight of the Department. The escalating crime-w ave has placed an enormous
burden on our prisons and the Department inherited a veritable mess bequeathed by the apartheid government. It also appears that
society demands of presiding officers that they simply send people to prison w ithout question. As a result it appears, in terms of the
figures available to me, that the daily prison population is approximately 169 000, w ith a prison capacity of approximately 100 000.
A very important aspect in these figures is that at April 2000 the number of unsentenced prisoners stood at 62 652, w hich
constitutes approximately 40% of the total number of prisoners in our prison facilities. From January 1995 to February this year the
number of unsentenced prisoners increased by 158% compared to an increase of 15% of prisoners over the same period. In his
speech in Parliament on 12 May 2000, the Minister of Correctional Services told Parliament:
'As a Department, overcrow ding remains our greatest challenge. It is threatening to undermine our efforts to comply w ith
international law s and standards regarding the
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separation of categories of prisoners, humane detention, provision of basic needs, provision of comprehensive primary health
care, rehabilitation of offenders, safe custody and raising and maintaining staff morale. Prison must not be view ed in isolation. It
must be understood as part of a larger political, economic and social order w hich sustains and is in itself sustained by prison. In
fact the correctional system is itself an integral part of an even larger system, namely the so-called criminal justice system. South
Africa is not an exception in its failure to recognise that Correctional Services are an integral part of governance.'
This reveals the extent of the pressure. Equipment is faulty, procedures are not follow ed and as a result prisoners w ho are in the
custody of the Department are placed in great jeopardy.
Several other judges have commented on this state of affairs. [88] In the Annual Report 2004/2005 by the Office of the
Inspecting Judge of Prisons [89] Fagan J once again drew attention to the 'deplorable' state of our prisons due to
overcrowding, pointing out that they were at the time overcrowded by 63%, and describing them as 'still lamentable'. In an
enlightening study of conditions in Pollsmoor Prison, Cape Town, conducted from an ethical perspective during 2004, Van
der Berg [90] found that the prison was overcrowded by 201% with cells designed for 18 prisoners often having to
accommodate as many as 55.
Needless to say, figures have not improved much (if at all) in the decade since the judgment in S v Mark, a fact which
contributed towards compelling the authorities to resort to legislative measures in an effort to ease overcrowding and to
assist those awaiting-trial prisoners who truly cannot afford bail and who are needlessly incarcerated. In addition, special
measures have been introduced with regard to children awaiting trial. These are discussed below.
16.10 Bail procedures prompted by prison conditions: s 60(2B)

It may be thought (and justifiably so, in the light of some figures which will be stated and discussed below) that the
alarming overcrowding of prisons referred to in para 16.9 above may be attributed in large measure to the inability of
awaiting-trial prisoners to afford bail. However, a recent study [91] based on data collected from three busy bail courts in
South Africa produced a number of interesting observations and conclusions with reference to the pre- and post-1997
position (1997 being the date of introduction of materially amended bail legislation):
The findings of this study suggest that the criminal justice system is unable to try the vast majority of its accused. The implicit effect of
the operation of the system is instead to mete out 'punishment' through variation in the extent to w hich the accused remains in the
system 'aw aiting trial'. Those charged w ith less serious offences are 'punished' by being arrested and brought to court but the case is
dropped on first appearance or soon thereafter, w hile the most serious offences are 'punished' by a significant time aw aiting trial
before the case is dropped. [92] This conclusion
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is based on the finding that, in the courts in question, 1 out of every 2 cases w as w ithdraw n or struck off the roll—w ith the stage at
w hich this occurs varying by the seriousness of the offence. A conviction w as only obtained in approximately 1 out of 16 cases. W here
there is a conviction, although imprisonment w as more likely than an alternative sentence, most sentences of imprisonment w ere
either partially or w holly suspended. Unaffordable bail does not appear in general to be a key driver of prison overcrowding in the courts
under consideration but a higher rate of unaffordable bail w as found in one regional court (Durban) w here 1 in 4 appeared unable to
pay the amount set. Less serious offences are more likely to result in 'release on w arning' otherw ise know n as 'free bail'. Long-term
take-up of bail w as low w ith only 1 in 8 having been released on bail before the conclusion of the case. How ever, 1 in 5 w ere
released on w arning. (Emphasis added.)
While the inability to afford bail may not be 'a key driver' of prison overcrowding, it is apparent that an inordinately large
number of awaiting-trial prisoners are incarcerated because they are unable to afford bail—in many instances, even nominal
amounts of bail (which, it is submitted, must be a significant contributory factor in overpopulation of prisons). In point of
fact, the Fagan Report [93] suggested the release of awaiting-trial prisoners as a means of reducing overcrowding:
In every one of those cases [ie, w here prisoners w ere unable to afford bail], a magistrate had decided that the accused could aw ait
his/her trial w ithout being imprisoned. In effect the magistrate had decided that the accused w as no danger to the community and
could w ith his w ork or school until his court case. As an incentive for the accused to attend court on the trial date, an amount of bail
to be deposited had been ordered. Regrettably in each of the almost 14 000 cases, the magistrate misjudged the ability of the
accused to pay the bail and had effectively sent him/her to prison.
Van der Berg [94] found that there was a likely correlation between unaffordable bail and overcrowding. She writes:
Legally, bail should be set at realistic amounts, or accused persons should be discharged subject to certain conditions. A case
screening system, w hich originated in New York, has recently been adopted by the Mitchell's Plain Magistrate's Court. Suspects are
interview ed prior to their court appearance, and non-dangerous offenders are consequently not detained if they cannot afford bail.
This method has contributed to a significant reduction of prisoners at Pollsmoor, and should be adopted by courts throughout our
country. [95] (Emphasis added.)
Also agitating for legal reform, the Fagan Report, in referring to the 14 000 awaiting-trial prisoners unable to afford bail,
referred to above, reads: [96]
This should not be so. Bail should be affordable. That about 14000 persons are in prison because of poverty is unacceptable. Urgent
attention from the Department of Justice and Correctional Development is called for.
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It is instructive, however, that Fagan J also refers [97] to the unnecessary arrests mentioned by Karth et al [98] as a factor
contributing to overcrowding (and therefore indirectly, it is submitted, to the need for a legislative rescue of those awaiting-
trial prisoners unable to afford bail:
[T]here w ere 225 373 aw aiting-trial prisoners w ho w ere taken to court and not returned to prison from court during 2004. That
amounts to 18 793 per month. . . . The probability is that in the vast majority of cases the charges w ere w ithdraw n. The question is
why were these people arrested, held in prison on average for several months, only to learn at court that they were unnecessarily arrested
and imprisoned. (Emphasis added.)
It does come to mind that, apart from sloppy investigative and prosecutorial separation of chaff from wheat, a form of
anticipatory punishment or authoritarian petulance might be at work, as suggested by Karth et al.
In an apparent attempt to relieve the pressure of overcrowding, the legislature introduced sub-section 60(2B) of the Act
in 2008, [99] which came into operation in 2009. The sub-section reads as follows:
(2B) (a) If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1),
and if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability
of the accused to pay the sum of money being considered or any other appropriate sum.
(i) unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an amount of money
for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as provided for in
subsection (13)(b); or
(ii) able to pay a sum of money, the court must consider setting conditions for the release of the accused on bail and a sum of
money w hich is appropriate in the circumstances.
The sub-section is a straightforward one that places a clear duty on courts to investigate an accused person's ability to pay
bail. This duty arises once the court has determined that it is unnecessary, in the interests of justice, to incarcerate the
accused pending his trial, and only if the court thereupon decides that an amount of bail rather than release on warning
would be the appropriate mechanism. [100] The next step is for the court to ascertain whether the accused is able to afford
any amount of bail. Should he appear to be unable to pay any bail, the court must consider either release against a
guarantee in terms of s 60(13)(b) of the Act, or release on warning [101] mandatorily coupled with discretionary conditions
which exclude the payment of any amount of bail. [102] Should the accused be able to pay any amount of bail, the court
must consider setting appropriate conditions and, in addition thereto, an amount of bail which is appropriate 'in
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the circumstances'. [103] One cannot help thinking, on a consideration of the real meaning of the sub-section, that the
legislative effort was valiant but futile: the mechanism for release on conditions but without payment of bail already exists,
and it is both a constitutional requirement [104] and settled law that cash bail must be set in a reasonably affordable
amount. [105] Thus, the sub-section is a mere duplication and confirmation of the status quo. The aforegoing views are
echoed in S v Jacobs, [106] where the following was said:
[12] . . . Courts can now in any event take judicial notice of the fact that the country's prisons are grossly overcrow ded, particularly
the aw aiting-trial sections, and that a large number of the aw aiting-trial prisoners have been granted bail and cannot afford to pay
the bail, w hich is sometimes a small amount. No person w ho has been granted bail should still be in custody, w hether in overcrow ded
conditions or not. The granting of bail recognises an aw aiting-trial accused's right to liberty w hile he is presumed innocent.
[13] The existing principles regarding affordability of bail in relation to an accused's right to liberty, have, in my view , merely been
affirmed by the enactment of s 60(2B) of the Act. The subsection serves as a reminder to judicial officers to consider properly the
amount of bail to be set, or other conditions of release w hich w ill be just as effective for the administration of justice as payment of
money. It seems that this reminder is necessary given the large number of persons w ho are still in custody aw aiting trial because
they cannot afford the bail w hich they have been granted.
16.11 Bail procedures prompted by prison conditions: s 63A

[107]
In 2001 the Act was amended [107] by the insertion of a potentially useful, but unwieldy, provision aimed at protecting the
dignity, health and safety of prisoners. This provision was s 63A of the Act, which reads as follows:
63A(1) If a Head of Prison contemplated in the Correctional Services Act, 1998, is satisfied that the prison population of a particular
prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety
of an accused—
(a) w ho is charged w ith an offence falling w ithin the category of offences—
(i) for w hich a police official may grant bail in terms of section 59;
(ii) referred to in Schedule 7;
(b) w ho has been granted bail by any low er court in respect of that offence, but is unable to pay the amount of bail concerned; and
(c) w ho is not also in detention in respect of any other offence falling outside the category of offences referred to in paragraph (a),
that Head of Prison may apply to the said court for the—
(aa) release of the accused on w arning in lieu of bail; or
(bb) amendment of the bail conditions imposed by that court on the accused.
(2)(a) An application contemplated in subsection (1) must be lodged in w riting w ith the clerk of the court, and must—
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(i) contain an affidavit or affirmation by the Head of Prison to the effect that he or she is satisfied that the prison population of the
prison concerned is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical
health or safety of the accused concerned; and
(ii) contain a w ritten certificate by the Director of Public Prosecutions concerned, or a prosecutor authorised thereto by him or her in
w riting, to the effect that the prosecuting authority does not oppose the application.
(b) The accused and his or her legal representative, if any, must be notified of an application referred to in subsection (1).
(c) The clerk of the court must, w ithout delay, cause the application to be placed before any magistrate or regional magistrate, as
the case may be, w ho may consider the application in chambers.
(d) The application may be considered in the presence of the accused if the magistrate or regional magistrate deems it necessary.
(3)(a) If the magistrate or regional magistrate is satisfied that the application complies w ith the requirements set out in subsection
(2)(a), he or she may—
(i) order the release of the accused from custody and, if the accused is present, w arn him or her to appear before a specified court
at a specified time on a specified date in connection w ith such offence or, as the case may be, to remain in attendance at the
proceedings relating to the offence in question, and the court may, at the time of such order or at any time thereafter, impose
any condition referred to in section 62 in connection w ith such release; or
(ii) reduce the amount of bail determined under section 60 and, if deemed appropriate, amend or supplement any condition imposed
under section 60 or 62.
(b) If the accused is absent w hen an order referred to in paragraph(a)(i) is made or w hen bail conditions are amended in terms of
paragraph (a)(ii), a correctional official duly authorised by the Head of the prison w here the accused is in custody must—
(i) hand to the accused a certified copy of the said order or of the bail conditions as amended and explain to the accused the import
thereof; and
(ii) return to the clerk of the court a certificate under the hand of that official and signed by the accused, that he or she has handed
the certified copy of such order or conditions to the accused and that he or she has explained to the accused the import thereof,
and the mere production to the court of the said certificate shall be prima facie proof that the said certified copy w as handed and
explained to the accused.
(c) The provisions of section 72(2)(a) apply, w ith the necessary changes, in respect of an accused released in terms of paragraph
(a)(i).
(4)(a) The National Director of Public Prosecutions may, in consultation w ith the Commissioner of Correctional Services, issue
directives regarding—
(i) the establishment of monitoring and consultative mechanisms for bringing an application contemplated in subsection (1); and
(ii) the procedure to be follow ed by a Head of Prison and a Director of Public Prosecutions w henever it appears that it is necessary
to bring an application contemplated in subsection (1).
(b) Any directives issued in terms of paragraph (a) must be submitted to Parliament before they take effect.
As may be seen, the provision is cumbersome and the prescribed procedure for implementing it promises to be time-
consuming. The objective is to secure the release of an awaiting-trial prisoner, or the amendment of his bail conditions (in
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effect the amount of his bail) where the accused is in custody in respect of a relatively minor offence for which police bail
may be granted or a slightly more serious offence for which prosecutorial bail would be competent. There are however
several important jurisdictional facts that have to be present before the process may be set in motion:
(1) the official initiating the process must be the head of a designated prison;
(2) the head of prison must be satisfied that 'a material and imminent threat' is posed by the conditions in his prison to
the human dignity or physical health or safety of an accused;
(3) the accused must be one who is charged with committing an offence circumscribed by the ambit of Schedule 7 to the
Act or s 59 of the Act;
(4) the accused must not in addition be charged with offences falling outside the aforesaid ambit; and
(5) the accused must have been granted bail by a lower court and be unable to afford such bail.
The nature of, and entire justification for, this measure rests on the premise that the accused has been granted bail which
he cannot afford to pay. A number of anomalies are however immediately apparent: first, although the application
contemplated by the head of prison concerned may only be brought in respect of an accused who is charged with an offence
for which police bail [108] or prosecutorial bail [109] would be competent (and who therefore may have been granted police bail
or prosecutorial bail which he could not afford to pay), an application for his release or the reduction of his bail may only be
brought if bail had been granted by a court. There can be no justification for this discrepancy. Second, if the accused had
been granted bail (which he cannot afford to pay) by a High Court as court of first instance or on appeal, it would not be
open to a head of prison to apply for his release or reduction of bail, as the section confines jurisdiction to unaffordable bail
granted by a lower court. Again, logically there is no justification for the legislative distinction.
Once the jurisdictional facts are satisfied, the daunting process may be set in motion whereby the accused may ultimately,
on application by the head of prison, be released on warning or have his bail reduced. Both the benefits, namely the easing
of overcrowding in prisons, and limitations, to wit the involved nature, of this provision were recognised in S v Jacobs, [110]
where the court stated:
[14] The problem of overcrow ding, and, in particular, a person's inability to pay bail w as expressly addressed by the introduction of s
63A of the Act. This section provides that a head of prison may apply to court for the release on w arning, or amendment of bail
conditions of an accused if he/she 'is satisfied that the prison population of a particular prison is reaching such proportions that it
constitutes a material and imminent threat to the human dignity, physical health or safety of an accused'. The section is restricted to
accused persons w ho have
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been granted bail and are unable to pay, and w ho are charged w ith offences w hich fall into a certain category, namely those referred
to in Schedule 7 of the Act, or offences for w hich a police official may grant bail.
[15] The procedure set out in s 63A is quite involved. It has to be initiated by the head of the prison, w ho has to depose to an
affidavit regarding the population of the prison, and the Director of Public Prosecutions has to issue a certificate to the effect that the
prosecuting authority does not oppose the application. Even then, the court has a discretion to grant the application, in that it 'may'
order the release of the accused. I should mention here that it is unlikely that the legislature intended—w ith s 60(2B)(b)(i) of the Act—
a blanket release, w ithout payment of a sum of money, for offences more serious than those covered by s 63A, w hen, in terms of that
section, the court still has a discretion.
[16] The intention of the legislature in enacting s 63A of the Act w as expressly to address the overcrow ding of prisons w ith the
concomitant violation of a person's dignity and threat to his health and safety. I see no reason w hy courts should not have regard to
the purpose of that section w hen deciding bail applications w here the offence falls outside the ambit of that section. The ongoing
violation of a person's dignity and threat to his health and safety are vitally important factors to take into consideration, especially
w hen he has been granted bail and is in custody only because he cannot afford to pay the bail.
Accordingly, so the court rightly held, each case must be decided on its own circumstances.
16.12 Bail applications neither curial nor extra-curial: s 159A

In terms of the provisions of s 159A to 159D, introduced into the Act in 2009 [111] and which came into operation in 2010,
certain limited proceedings may be conducted in designated magisterial districts where an accused person is held in a
designated prison, by means of audio-visual link. The section will only apply to certain accused stipulated in s 159A(2)(a)-
(e): if the accused meets the requirements of the section, he need not be transported to and from court, but may have
certain proceedings disposed of in accordance with prescribed technology. The aim is evidently to save costs and time.
Those accused persons who may have their bail applications disposed of by means of audio-visual link, are circumscribed
by s 159A(2) of the Act:
(2) An accused person—
(a) w ho is over the age of 18 years;
(b) w ho is in custody in a correctional facility in respect of an offence;
(c) w ho has already appeared before a court;
(d) w hose case has been postponed and w ho is in custody pending his or her trial; and
(e) who is required to appear or to be brought before a court in any subsequent proceedings (whether before, during or after the trial or
conviction and sentence) for the purpose of—
(i) a further postponement of the case; or
(ii) consideration of release on bail in terms of section 60, 63, 63A, 307, 308A or 321, where the granting of bail is not opposed by
the prosecutor or where the granting of bail does not require the leading of evidence,
is not required to appear or to be brought physically before the court but may, subject to the provisions of this section, sections 159B,
159C and 159D, appear before court by audiovisual
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link and is deemed to be physically before court, unless the court directs, in the interests of justice, that he or she appears or be
brought physically before it. (Emphasis added.)
Thus, a bail application that is either unopposed or does not require the leading of evidence may be disposed of in this way.
As will be seen, this means that the bail application is not curial (one that takes place in court), nor extra-curial (such as
police bail or bail granted by a prosecutor). However, the section stipulates that the point at which the accused receives the
audio-visual communication shall be regarded as a court. [112] The court remains in control of proceedings, and is
responsible for ensuring that the hearing is fair. As Du Toit et al [113] observe, if fairness were not thus ensured, 'we are left
with a hollow and meaningless fiction'.
It is not clear what the position would be if the prosecutor were to oppose the bail application: in such event the hearing
may proceed by way of audio-visual link, but only if the application 'does not require the leading of evidence'. Does that
confine the use of the technology to applications falling outside the reach of s 60(11), which requires that the accused
should 'adduce evidence'? If the accused were to adduce evidence—whether in accordance with s 60(11) or otherwise—by
way of affidavit, would the technology be excluded? And if not, would its use be desirable? These are some of the questions
that arise in response to this new initiative. More pertinent questions may well arise with regard to the accused's full
enjoyment of the right to counsel and the possible jeopardy in which the right to legal professional privilege may be cast. It
can only be hoped that the courts will be ultra vigilant in not sacrificing important rights and procedural safeguards on the
altar of expediency.
[1] C f S v Dlamini 1999 (2) SAC R 51 (C C ) at [11], [94].
[2] C f S v Chavulla and Others 1999 (1) SAC R 39 (C ) 43g.
[3] 2012 (1) SA 417 (SC A).
[4] 1985 (4) SA 130 (N) 131.
[5] At 131E.
[6] 1985 (3) SA 587 (N), per Friedman J.
[7] At 588C -589G.
[10] Ibid.
[11] Ibid.
[12] Section 184(2) read with s 170(2) of the Act.
[14] C f s 184(1) of the Act.
[15] C f s 1 of the Act.
[17] But cf Hurley v Minister of Law and Order 1985 (4) SA 709 (D).
[18] See ss 58-71 of the Act.
[26] C f Secretary of State for Education and Science v Metropolitan Borough of Thameside (1977) AC 1014 (HL); Metal and Allied Workers Union v
Castell 1985 (2) SA 280 (D).
[27] C f Sigaba v Minister of Defence and Police 1980 (3) SA 535 (Tk); Hurley v Minister of Law and Order (above).
[28] C f Nienaber 1983 THRHR 211.
[29] Hurley (above) 716.
[30] Administrative Law (1985) 287.
[31] Wiechers 288-90.
[32] Wiechers 288.
[33] C f Wiechers 289; Henning 1968 THRHR 155.
[34] Hurley (above) 716.
[35] Wiechers 288.
[36] Section 185(8) of the Act, repealed by Act 88 of 1996, s 69.
[37] 1982 (4) SA 468 (NC ).
[38] Constitutional Criminal Procedure (1998) 53.
[39] 1966 (4) SA 598 (A).
[40] At 605F.
[41] 1966 (4) SA 660 (A).
[42] Gosschalk v Rossouw 1966 (2) SA 476 (C ).
[43] S v Weinberg (above).
[44] Rossouw v Sachs 1964 (2) SA 551 (A) 561.
[45] By the Protection of C onstitutional Democracy Against Terrorist and Related Activities Act 33 of 2004, s 27.
[46] Singh v Attorney-General, Transvaal 1967 (2) SA 1 (T).
[47] Schermbrucker v Klindt NO 1965 (4) SA 606 (A).
[48] DC LD case no C C 176/88 (unreported)—see 1989 SACJ 402 403.
[49] Section 185(5) of the Act reads as follows:
'No person, other than an officer in the service of the State acting in the performance of his official duties, shall have access to a person detained
under sub-section (2), except with the consent of and subject to the conditions determined by the attorney-general or an officer in the service of the
State delegated by him.'
[50] The Terrorism Act 83 of 1967, s 6.
[51] Act 74 of 1982.
[52] C f Gosschalk v Rossouw (above) 478. See also Van der Berg 1985 SACC 252.
[53] Van der Berg 1985 SACC 252 253.
[54] Prof B van Niekerk, cited in Van der Berg 1985 SACC 252.
[55] Gosschalk v Rossouw (above) 492.
[56] See Rossouw v Sachs (above) 561; Schermbrucker v Klindt (above) 612. And compare the position in the United States of America as
expressed in Miranda v Arizona 384 US 436 (1966) 457; Blackburn v Alabama 361 US 199 (1960) 206.
[57] Above 492-3.
[58] Initially, in the form of the Draconian and clumsy Anti-Terrorism Bill, 2000.
[59] Section 12(1)(b) of the C onstitution.
[60] 1999 (2) SAC R 51 (C C ).
[61] Act 33 of 2004.
[62] Minister of Law and Order v Dempsey 1988 (3) SA 19 (A) 38C .
[63] Duncan v Minister of Law and Order 1986 (2) SA 805 (A) 814D.
[64] Act 67 of 1962.
[65] Act 33 of 2004, s 15(9). See also C h 19.
[66] Bail at extradition enquiries is fully discussed in C h 19.
[67] As to the law of bail applicable in extradition proceedings, see C h 19.
[68] In S v Dlamini (above) Kriegler J restated the obvious proposition that bail proceedings are indeed adversarial.
[69] As amended by Act 62 of 2000, s 8(1)(b).
[70] It should be noted, however, that the attorney-general's delegates do not enjoy this power. C ertificates submitted by senior prosecutors,
purportedly in terms of s 60(11A), are therefore of no force or effect, and do not constitute prima facie proof of their contents.
[71] C f S v Dlamini (above) at [81].
[72] 2012 (1) SAC R 305 (EC P).
[73] Section 7(1) of the Act. See generally Attorney-General v Van der Merwe and Bornman 1946 OPD 197 201 and the general caveat expressed in
cases such as Phillips v Botha 1999 (1) SAC R 1 (SC A).
[74] This much is clear from s 7(2)(a) and s 10(1) and (2) of the Act.
[77] See Bothma v Els 2010 (1) SAC R 184 (C C ) at [29]; and see Crookes v Sibisi 2011 (1) SAC R 23 (KZP) at [8].
[78] See, for instance, the Internal Security Act 44 of 1950, s 10(1)(a)bis; the Terrorism Act 83 of 1967, s 6(5); the Internal Security Act 74 of 1982,
s 31(7).
[79] 1999 (2) SAC R 51 (C C ).
[80] For instance, the 48-hour detention before first compulsory appearance in court, stipulated by s 50 of the Act.
[81] For instance, for questioning, or for the purpose of deportation.
[82] Voet 43.29
[83] For a discussion of the Roman-Dutch remedy, see Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A). The English remedy is discussed in
Katofa v Administrator-General for SWA 1985 (4) SA 211 (SWA); Katofa v Administrator-General for SWA 1986 (1) SA 800 (SWA).
[84] See generally Kentridge 1962 SALJ 283.
[85] Steytler 177.
[86] See Gosschalk v Rossouw (above); S v Mbele and Another 1996 (1) SAC R 212 (W) 225e-f.
[87] 2001 (1) SAC R 572 (C ) 583g-i.
[88] See for instance S v Abrahams 2001 (2) SAC R 358 (C ) 360b; S v Maluleke 2002 (1) SAC R 260 (T) 264h.
[89] The 'Fagan Report', submitted in compliance with Act 111 of 1998, s 90(4).
[90] Van der Berg, S Pollsmoor: an Ethical Travesty? (unpublished, 2004).
[91] Karth (with O'Donovan and Redpath) Between a Rock and a Hard Place—Report prepared for the Open Society Foundation of SA (2008).
[92] This is presumably the effect of the practice to arrest without thought or consideration of consequences. Were it to be deliberate (which is not
inconceivable), it would be a highly unconstitutional practice, grossly in breach of the prohibition of 'anticipatory punishment' referred to in S v Acheson
1991 (2) SAC R 805 (Nm).
[93] At 19, 21.
[94] Van der Berg, S (above) 14.
[95] See also Heard 'C ase Screening Speeds up Mitchell's Plain Work Flow' Sunday Times, 23 August 1998.
[96] At 21.
[97] See the Fagan Report at 21.
[98] Above.
[99] By Act 66 of 2008, s 9(a).
[100] Section 60(2B)(a).
[101] C uriously referred to as 'bail'. For release on warning coupled with conditions, compare s 72(1)(a) of the Act.
[102] Section 60(2B)(b)(i).
[103] Section 60(2B)(b)(ii).
[104] See s 35(1)(f) of the C onstitution.
[105] See para 10.3 above.
[106] 2011 (1) SAC R 490 (EC P) paras [12] and [13].
[107] By Act 42 of 2001, s 6.
[108] See s 59 of the Act and para 4.8 above.
[109] See s 59A of the Act (cross-referenced with Schedule 7 to the Act) and para 4.8 above.
[110] Above, paras [14]-[16].
[111] By Act 25 of 2008, s 1.
[113] Commentary on the Criminal Procedure Act RS 46 (2011) C h 22.
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17
Bail and the rights of children
17.1 Rights of the child generally

The Constitution in s 28(3) defined a 'child' as any person 'under the age of 18 years'. The rights of children receive a high
degree of protection from both the Constitution and international instruments, and also in the Act itself. Thus, for instance,
children are essentially protected against (and the accused deprived of the right to) full and effective cross-examination [1]
by s 170 of the Act, which provides that cross-examination should be conducted through the intervention of an
intermediary when it appears that the witness would otherwise be exposed to 'undue mental stress or suffering'. One is not
alone in expressing what some may see as a cynical reservation with regard to this provision: experience in our criminal
courts has shown how necessary it may at times be to utilise the full range of the cross-examiner's tools (such as tone of
voice, change of tempo, facial expression and hand gestures) where a 'child' witness is mendacious, inventive or has been
the subject of suggestion by parents, police or prosecutor. One is dealing here with a limitation of rights issue, weighing the
interests of the accused against the interests of the child, and it would seem that children's rights are likely to triumph in
the process. [2]
Section 28(2) of the Constitution stipulates, in addition to the protective provisions of s 28(1), that in every matter
affecting the rights of children, the best interests of the child are of decisive importance. [3]
17.2 Children: constitutional right to bail

The International Covenant on Civil and Political Rights, which had a 'discernible' influence on our Bill of Rights, [4] provides
generally for release of awaiting-trial prisoners and significantly stipulates that '[i]t shall not be the general rule that persons
awaiting trial shall be detained in custody'. [5] The applicable international instrument dealing with the detention of
children, [6] however, goes much further in stipulating that the detention of children should
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be used only as 'a measure of last resort', and should be 'for the shortest appropriate period of time'. [7]
The Constitution, in s 28(1)(g), echoes the international sentiment word for word. It reads:
(1) Every child has the right—
(g) not to be detained except as a measure of last resort, in w hich case, in addition to the rights a child enjoys under sections 12 and
35, the child may be detained only for the shortest appropriate period of time . . .' (Emphasis added.)
Section 35(1)(f) of the Constitution, which applies to all, including a child, arrested 'for allegedly committing an offence',
confers a right to be released from detention 'if the interests of justice permit, subject to reasonable conditions'. In addition
to this right, the child accused has the right to be held only as a last resort, and only for the shortest time that may be
appropriate. Accordingly, when application is made in terms of s 60 of the Act for bail in respect of an arrested child, there is
a presumption that the child should be released if at all possible; detention would only be justified if it served the interests
of justice— and then only on 'clear and substantial evidence' to that effect. Thus the state would bear the onus of proving
that release would not be in the interests of justice. [8]
As Steytler writes:
W hile the w ord 'except' [in s 28(1)(g) of the Constitution] does not necessarily impose an accusatorial process on the proceedings,
the state w ill nevertheless carry the burden of show ing that a release w ould not be in the interests of justice. The test w hich the
court must apply is w hether detention is in fact the last resort w hich the state has turned to. This implies that the court must be
convinced that other non-custodial methods have been unsuccessfully tried, or should they be used, would prove to be ineffective. Again, in
terms of the release inquiry, the burden w ill fall on the state to provide clear and substantial evidence to this effect. (Emphasis
added.)
What is stated above should not be seen as authority or agitation for a blanket approval of bail (and post-conviction, for
non-custodial sentences) in every case where children are concerned. The sad fact is that the criminal courts are not
unfamiliar with the phenomenon that juvenile accused are frequently responsible for the most vicious premeditated crimes of
violence calling for pre-trial detention in the interests of the safety of the community, and removal from society by means of
custodial sentences. This view was endorsed in DPP, KwaZulu-Natal v P, [9] where the court stated:
[19] It must be remembered that the Constitution and the international instruments do not forbid incarceration of children in certain
circumstances. All that it requires is that the 'child be detained only for the shortest period of time' and that the child be 'kept separately
from detained persons over the age of 18 years'. It is not inconceivable that [10] some of the courts may be confronted with cases which
require detention. It happened in the United Kingdom not so long ago in the case of R v Secretary of
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State for the Home Department, Ex parte Venables; R v Secretary of State for the Home Department, Ex parte Thompson w here tw o boys
aged ten w ere convicted of the murder of a tw o-year-old boy in appalling circumstances. (Emphasis added.)
17.3 Role of the police

It is important to note that the Child Justice Act 75 of 2008 distinguishes between children under 14, those between 14 and
18, and those between 18 and 21. [11] Curiously, in the latter instance persons between 18 and 22 years of age may still be
dealt with as children if considered appropriate by the prosecuting authority. Children under 14 years of age may not be
arrested. [12]
Considering the legislative (and judicial) emphasis on release rather than detention of arrested children, the Child Justice
Act [13] makes it compulsory for police officials in certain circumstances to release a child on written notice into the care of a
parent, guardian or 'appropriate adult'. This would be the case if a child has been arrested, and if the preliminary judicial
inquiry prescribed by the Child Justice Act is yet to take place. The offences in respect of which the arrest took place and
which activate the compulsory release are set out in Schedule 1 to the Child Justice Act. [14]
17.4 Role of the prosecutor
A prosecutor may (not 'must', as in the case of a police official) authorise the release of a child arrested in respect of those
offences that are listed in Schedule 1 or 2 to the Child Justice Act 75 of 2008. [15] The prosecutor's discretion thus
extended will be exercised in accordance with s 25 of the Child Justice Act, which stipulates that Chapter 9 of the Act (the
bail chapter) shall apply. The prosecutor's discretion must be further exercised in conjunction with a reading of s 59A of the
Act (which relates to prosecutorial bail).
17.5 Role of the court granting bail

At the child accused's first appearance at a preliminary inquiry held in terms of the Child Justice Act 75 of 2008, and
thereafter at a child justice court, the presiding officer may release him into the care of his parents, guardian or an
'appropriate adult', regardless of the nature of the offence, or on his own recognisance if he is charged with an offence
referred to in Schedule 1 or 2 to the Child Justice Act. If he is not so released, the child accused may be released on bail as
contemplated by s 25 (in other words, in terms of s 60 of the Act).
Where an application for bail is made under s 60 of the Act by a person who is possibly a 'child' as defined in the
Constitution, the court has a duty to
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determine the accused's age—whether through documentary evidence, or the evidence of a medical practitioner or the
accused's mother—before resorting to estimating his age. This is essential as the accused's age would in turn determine the
approach that the court should take in considering the question of bail. [16] The Child Justice Act 75 of 2008 in fact ascribes
specific duties of age assessment to police officials, probation officers and magistrates. [17]
Next, the provisions of a 25(2) of the Child Justice Act 75 of 2008 stipulate that the court should, in this order, establish
the course to adopt:
(1) By considering whether the interests of justice permit the child's release;
(2) if release is appropriate, by considering whether the accused or his parents, guardian or an 'appropriate adult' are able
to afford paying bail;
(3) if, after an inquiry, it appears that no amount of bail is affordable, by directing the release of the accused on 'bail' [18]
coupled with conditions set out in s 21(3), but not including a condition to pay bail;
(4) If it appears that bail may be affordable, by considering the amount which would be affordable, and ordering the
accused's release on bail in such amount.
The resemblance between s 25(2) of the Child Justice Act 75 of 2008 and s 60(2B) of the Act is immediately apparent, and it
is submitted that the two sections should be read together in appropriate circumstances.
During the entire bail process, the court will bear in mind that, with minor exceptions, Chapter 9 of the Act (which
includes s 60 and all the relevant pre-trial bail provisions as well as the appeal mechanism) is applicable. [19] In its
deliberations, particularly with regard to the question whether the interests of justice permit the release of the accused on
bail, the court is further enjoined to individuate its approach to the particular accused before it—in the same way it would be
expected to do when sentencing a child—and to observe the principles and true meaning of detention as a last resort and
for the shortest time appropriate. Much guidance may in fact be taken from decisions on the court's expected approach to
sentencing. Thus a majority of the Constitutional Court stated the following (in the context of considering the competence
of imposing minimum sentences on children): [20]
[31] But w hile the Bill of Rights envisages that detention of child offenders may be appropriate, it mitigates the circumstances.
Detention must be a last, not a first, or even intermediate, resort; and when the child is detained, detention must be 'only for the shortest
appropriate period of time'. The principles of 'last resort' and 'shortest appropriate period' bear not only on
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w hether prison is a proper sentencing option, but also on the nature of the incarceration imposed. If there is an appropriate option
other than imprisonment, the Bill of Rights requires that it be chosen. In this sense, incarceration must be the sole appropriate option. But
if incarceration is unavoidable, its form and duration must also be tempered, so as to ensure detention for the shortest possible period of
time.
[32] In short, s 28(1)(g) requires an individuated judicial response to sentencing, one that focuses on the particular child w ho is being
sentenced, rather than an approach encumbered by the rigid starting point that minimum sentencing entails. The injunction that the
child may be detained only for the shortest 'appropriate' period of time relates to the child and to the offence he or she has committed. It
requires an individually appropriate sentence. It does not import a supervening legislatively imposed determination of w hat w ould be
'appropriate' under a minimum sentencing system. (Emphasis added.)
Similarly, in S v IO [21] a Full Bench of the Cape High Court, in reducing the long-term prison sentence of a juvenile accused,
expressed an interpretation of the principles set out in s 28 of the Constitution in terms which may be equally applicable to
a consideration of bail in respect of a child applicant:
[15] It appears from a careful perusal of the learned trial judge's judgment on sentence that there is absolutely no reference therein to the
imperative provisions of s 28 of the Constitution. Nor is there any trace therein of an informed and nuanced weighing of all the interlinking
factors of relevance to the sentencing process, and indicative of a changed judicial mindset consonant with an awareness of or an application
of the provisions of the Constitution regarding the sentencing of juveniles. W hat is of significance in that regard is that, despite the social
w orker's recommendation that the appellant should be detained in facilities for juveniles because he w as younger than 18 years at
the time he w as sentenced, no directions w ere given that he be detained apart from persons older than that age. W e in the
circumstances are driven to conclude that the learned trial judge committed a misdirection. In the circumstances, this court is at large
to consider w hat an appropriate sentence w ould be.
[16] That enquiry is facilitated by the fact that there are no disputes of fact betw een counsel for the appellant and counsel for the
State, and that the latter has conceded—in our view fairly and correctly—that the sentence imposed by the trial judge should be
reconsidered and reduced.
[17] W hat an appropriate sentence w ill be in respect of the appellant must be determined w ith reference to his personal
circumstances, the nature and seriousness of the offences of w hich he has been convicted and the interests of society, as w ell as the
imperative provisions of the Constitution as regards the sentencing of juvenile offenders. What must, however, be borne in mind is that
the provisions of the Constitution relating to the sentencing of juveniles are not absolute (see S v M (supra) at para 26; Director of Public
Prosecutions, KwaZulu-Natal v P (supra) at para 19), but subject to limitation in appropriate circumstances, such as where a presiding
officer is satisfied that imprisonment is justifiable by 'the seriousness of the offence, the protection of the community and the severity of
the impact of the offence on the victim' (see S v Nkosi (supra) at 147d-e). If regard is had to the appellant's personal circumstances; the
seriousness of and the circumstances of the commission of the crimes of w hich he has been convicted—it w as clearly a gang-related
revenge killing; and the interests of the community, the need for long-term incarceration in our view trumps the imperative provisions
of s 28 of the Constitution. Accordingly, the imposition of long-term imprisonment is called for in the appellant's case. The only
question
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is w hat the duration thereof should be, bearing in mind that the provisions of s 28(1)(g) require that it should be for the shortest
appropriate period of time. (Emphasis added.)
17.6 Role of the court refusing bail

If bail is refused, the court before which a charge is pending 'must be vigilant that the detention remains appropriate'. [22] In
addition, it must ensure that the detention does not endure for a period which exceeds that which may be 'appropriate' in
the circumstances. Thus, it is submitted, an added duty rests on the court in question to see to it that resources and
planning of court rolls, and the like, are in place in order to ensure that the child's trial is concluded with all expedition. [23]
It is submitted that the High Court may also use its inherent jurisdiction to ensure compliance with the constitutional
requirements expressed in sub-sections 28(1)(g), (2) and (3). In order to do so, the High Court may inter alia issue
mandatory interdicts. In S v Z [24] the principles of detention only as a last resort and only for the shortest time appropriate
came under consideration by a Full Bench of the Eastern Cape High Court. The circumstances were that several children had
been sentenced to detention in a reform school but, by reason of administrative difficulties, were detained elsewhere
(including ordinary prisons) for unreasonably long periods. The court, in holding that in the circumstances the children's
rights protected by s 28(1)(g) and 28(2) of the Constitution had been threatened or infringed, further held that new
approaches were called for to give effect to such rights:
[37] The positive obligations that the Constitution places on the State—to 'protect, promote and fulfil' fundamental rights—means that
in proper cases, new approaches to remedies are called for. The 'usual' remedies, such as the declarator, the prohibitory interdict, the
mandamus and aw ards of damages may not be capable of remedying, or appropriate to remedy, systemic failures or the inadequate
compliance w ith constitutional obligations, particularly if one is dealing w ith the protection, promotion or fulfilment of rights of a
programmatic nature. Because courts are directed to grant appropriate relief w hen a right in the Bill of Rights has been infringed or
threatened, and such relief must in addition be just and equitable, judicial innovation may be necessary to properly and effectively
remedy constitutional infractions by fashioning new remedies: in Fose v Minister of Safety and Security Ackermann J stated that
'w here so few have the means to enforce their rights through the courts, it is essential that on those occasions w hen the legal
process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated'; and that
'the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights'.
[38] One of the remedies that has been developed and utilised in countries that, like South Africa, are committed to the values of
human dignity, equality and freedom, is the structural interdict, a remedy that orders an organ of State to perform its constitutional
obligations and report on its progress in doing so from time to time. This remedy has been recognised and
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accepted as a competent remedy in appropriate cases, by the Constitutional Court in Pretoria City Council v Walker and in Minister of
Health and Others v Treatment Action Campaign and Others (1) in w hich the Court held explicitly that its pow er to grant mandatory relief
'includes the pow er w here it is appropriate to exercise some form of supervisory jurisdiction to ensure that the order is implemented'.
The remedy has also been granted in this Division in Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape
Provincial Government, and Another.
[39] I would venture to suggest that, as a remedy, the structural interdict is particularly suited to a society committed, as ours is, to the
values of 'accountability, responsiveness and openness' in a system of democratic governance. In this case it w ould be appropriate
because the subject matter of this litigation is the 'core business' of the courts, the effective implementation of the sentences
imposed on juvenile offenders. In addition, the Superior Courts are the upper guardians of minors. That, too, would serve as strong
justification for the assumption of a supervisory jurisdiction in a case such as this. (Emphasis added.) [25]
[1] See Van der Merwe 1995 Obiter 1 16; Steytler Constitutional Criminal Procedure (1998) 348-350.
[2] Section 28(2) of the C onstitution. See the excellent discussion by Steytler 349; Van der Merwe 1995 Obiter 1 16.
[3] As to the paramountcy of the best interests of the child under s 28(2) of the C onstitution, see for instance De Reuck v DPP, Witwatersrand 2003
(2) SAC R 445 (C C ).
[4] Du Plessis & C order Understanding South Africa's Transitional Bill of Rights (1994) 121.
[5] Article 9(3) of the IC C PR. 'Significantly' because the judicial interpretation of s 60(11)(a) of the Act has been that, where the charge faced by the
accused is one listed in Schedule 6, 'detention is the norm'—see S v Dlamini 1999 (2) SAC R 51 (C C ).
[6] C onvention on the Rights of the C hild.
[7] Article 37(b).
[8] See Steytler 146.
[9] 2006 (1) SAC R 243 (SC A) para [19]. See also S v Brandt 2006 (1) SAC R 311 (SC A) para [13].
[10] Act 75 of 2008, C hapter 2 and especially ss 7-12.
[11] Act 75 of 2008, s 4(2)(b).
[12] Act 75 of 2008, s 9(1).
[13] Act 75 of 2008, s 21(2)(a).
[14] Act 75 of 2008, s 21(3).
[15] Act 75 of 2008, s 21(2)(b).
[16] C f S v Dial 2006 (1) SAC R 395 (E), where the magistrate had estimated the accused's age as 19 rather than 17 years old when sentencing him
—a discrepancy that could have a material bearing on the sentencing approach and the actual sentence to be imposed.
[17] Act 75 of 2008, ss 13, 14 and 15 respectively.
[18] 'Bail', where the condition that an amount be paid or security be provided is pertinently excluded, is of course a misnomer. The order is nothing
other than release on warning coupled with conditions, as envisaged by s 72(1) of the Act.
[19] Act 75 of 2008, s 25(1).
[20] Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2) SAC R 477 (C C ) paras [31], [32].
[21] 2010 (1) SAC R 342 (C ) paras [15]-[17].
[22] Steytler 147. This requirement is both logical and in accordance with international jurisprudence.
[23] See also Steytler 147.
[24] 2004 (1) SAC R 400 (E) paras [37]-[39].
[25] See also Brown v Board of Education of Topeka 349 US 294 (1954)—the second Brown case—which is regarded as the source of structural
interdicts in constitutional litigation, the Indian case of Barse v State of Maharashtra AIR 1983 SC 378 and the C anadian case of Re Language Rights
under s 23 of the Manitoba Act, 1870 and s 133 of the Constitution Act [1985] 1 SC R 721. See further C hayes 1976 Harvard LR 1281 1298.
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18
Bail and military tribunals
18.1 Military detention in statutory context

The world over, the military has, since time immemorial, looked after its own [1] and its own interests, which often lie very
close to the heart of the state, particularly in times of war. It is axiomatic that a vast organism such as the military would be
incapable of functioning efficiently in the absence of a strict and effective code of discipline. The former Defence Act 44 of
1957 provided just such a code in Schedule 1 to the Act, which became known as the Military Disciplinary Code ('MDC'). The
Defence Act 1957 has been repealed almost in its entirety, only seven sections dealing with military disciplinary matters
surviving the shears. It was succeeded, first, by the Military Discipline Supplementary Measures Act 16 of 1999, and
thereafter by the Defence Act 42 of 2002. Although extensively repealed or amended, the substance of the MDC remains in
force.
Of particular interest is the fact that not one of the measures referred to, ie the Defence Act 1957, the Military Discipline
Supplementary Matters Act 1999, the Defence Act 2002, or the MDC, made or makes any provision for persons arrested
within the military jurisdiction to be released on bail pending trial, regardless of the charge.
18.2 Pre-trial release

When a person is arrested for any offence in circumstances where the military court system is vested with jurisdiction, he
may be detained in accordance with regulations issued from time to time in terms of s 31 of the Military Discipline
Supplementary Measures Act 16 of 1999. The MDC [2] makes no provision for pre-trial bail, and nor does Act 16 of 1999.
However, elements of s 50 of the Act are reflected in the provisions of Act 16 of 1999: thus an arrested person must, in
terms of s 29(1), be brought before a military court within two days after his arrest. The military court is enjoined by s
29(3)(a) to ascertain whether or not the accused is in custody. The case may be 'remanded' (sic) [3] from time to time,
provided that where the accused is in custody, a remand shall not exceed seven days at any one time. [4]
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Significantly, albeit that bail is not provided for, in terms of s 29(3)(d)(i) an accused may be remanded provided that—
the court shall release an arrested person from detention if the interests of justice permit such release, and may determine
reasonable conditions for such release. (Emphasis added.)
Thus, if the interests of justice permit release, it is compulsory for the military court to release the accused in the event of a
postponement. In that event, it would be within the court's discretion whether such release should be accompanied by
conditions. If the decision is to make release conditional, the conditions must be objectively reasonable. As may be seen,
the provision is very similar to s 72(1) of the Act.
18.3 Release during trial

When the accused who is in custody has been arraigned and his trial has commenced, but is not summarily completed, the
military court may adjourn the trial. In such event s 33(6)(a) of Act 16 of 1999 provides that the military 'court shall release
an arrested person from custody if the interests of justice permit such release, and may determine reasonable conditions
for such release'. (Emphasis added.) As with pre-trial release, if the interests of justice permit it, the accused must be
released, and conditions (which must be objectively reasonable) may in the court's discretion be added.
18.4 Release pending appeal or review

Mönnig v Council of Review [5] was a review by a Full Bench of the Cape High Court. Three young men doing their National
Service in the Castle at Cape Town had been convicted of contravening s 18(2) of the Riotous Assemblies Act 17 of 1956,
read with s 4(1)(b) of the Protection of Information Act 84 of 1982, and sentenced to undergo 18 months' imprisonment in
the military detention barracks, by an ordinary court martial, convened in terms of s 104(5)(b) of the Defence Act 44 of
1957 read with ss 59(1)(b) and 71 of the MDC. The prisoners sought bail pending the confirmation of their convictions and
sentences by the 'convening authority' and an application for review before the military Council of Review (presided over by
a High Court Judge) in Pretoria. As the MDC made no specific provision for bail, King JP granted bail in chambers, exercising
his common-law jurisdiction. [6]
Similarly, in S v Tsotsi [7] the Eastern Cape High Court held that no statutory empowerment vested in the court the power
to grant bail to the applicant, who was in the process of bringing an application to review the findings of a military
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court. However, interestingly and significantly, Plasket J held that there was also no ouster of the court's jurisdiction. [8] In
the course of his judgment, the learned judge highlighted two principles relating to the High Court's common-law power to
grant bail, namely that, as such power derived from inherent jurisdiction, it had to be exercised consistently with the nature
and purpose of inherent jurisdiction, which was (in terms of the common law), and is (in terms of s 173 of the
Constitution), to enable superior courts to protect and regulate their own process, and to develop the common law; and
that the power to grant bail in the absence of statutory empowerment is a manifestation of the power of superior courts to
regulate their own orders in the interests of justice. [9] The learned judge went on to hold that despite the fact that military
courts are not part of the ordinary court structure, superior courts exercise a supervisory jurisdiction over them that is
'similar in all material respects to the supervisory jurisdiction that they exercise over magistrates' courts' and that there
was no bar to the High Court granting bail in the exercise of its common-law jurisdiction to control the orders of lower
courts within its area of jurisdiction. [10] (Emphasis added.)
The exercise of such common-law powers is discretionary, and the mere fact that the jurisdiction to grant bail at common
law exists does not mean that it must be exercised in every case. Whenever the inherent jurisdiction of a superior court is
in issue, the court concerned has a discretion to invoke that jurisdiction or not. [11] Significantly, however, a person
arrested or detained in terms of military law bears the same rights entrenched in s 35 of the Constitution as does an
arrested or detained person under civilian law.
[1] C f Mönnig v Council of Review 1989 (4) SA 866 (C ).
[2] See para 18.1 above.
[3] At the risk of sounding pedantic, a case is not remanded: a person is, by sending him back to custody (or on bail).
[4] Act 16 of 1999, s 29(3)(d)(iii).
[5] Above.
[6] The bail aspect is unreported, but the author has first-hand knowledge as he represented the second applicant during the military trial, before the
military C ouncil of Review, in the C ape High C ourt, and in the SC A (as to which, see Council of Review, SADF v Mönnig 1992 (3) SA 482 (A)).
[7] 2004 (2) SAC R 273 (E).
[8] At 278h.
[9] At 281e-h.
[10] At 281i-282d.
[11] At 282 d-e.
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19
Bail in extradition proceedings
19.1 Introduction
When someone who is wanted for a crime allegedly committed in a foreign country has fled to another state, the foreign
state can ensure the appearance of the suspect [1] before its own courts by the process of extradition. [2] Without
extradition treaties between states it would be virtually impossible to ensure punishment of wrongdoers who have fled
across the borders of a state where the crime was committed. [3] In South Africa the extradition process is governed by the
Extradition Act 1962. [4] The extradition process is an inherently cumbersome one, which often involves extensive
communications and negotiations between participating states, followed by the trial phase and, in some instances, an appeal
or judicial review. It follows that the suspect may, for systemic reasons, be deprived of his liberty for lengthy periods. For
that reason the Extradition Act makes provision for the release of the suspect on bail during the extradition process (albeit
that the bail provision is couched in somewhat mysterious terms, as will be seen below). In addition, an amendment of the
Extradition Act in 1996 has introduced the right to apply for bail pending appeal against an extradition order, an aspect that
is also discussed below. [5]
19.2 Bail pending extradition enquiry

In terms of s 9(1) of the Extradition Act 1962 the magistrate of the area in which the suspect has been arrested must, after
certain preliminary formalities have
Page 287
been performed, conduct an enquiry with a view to the surrender of the suspect to the foreign state which has requested
his extradition. The procedure to be followed by the magistrate is that prescribed for preparatory examinations under South
Africa's criminal procedure system. [6] The magistrate, in holding the enquiry, has 'the same powers, including the power
. . . of admitting to bail any person detained, as he has at a preparatory examination . . . [7]
First, it must be ascertained what is meant by the Extradition Act's reference to a 'preparatory examination'. The former
Criminal Procedure Act contained certain provisions [8] regulating preparatory examinations, which were instituted in all
major cases. The present Act has provisions [9] which are, broadly speaking, similar to those of its predecessor, but which
are rarely employed. Of importance, however, is the fact that the former Criminal Procedure Act specifically provided for bail
during preparatory examinations, [10] whereas the current Act does not. The question of which of the two Criminal
Procedure Acts applies to the extradition enquiry conducted by a magistrate is not merely academic, for if the former Act is
applicable, the further question arises whether that Act is to be applied in the form which existed at the time the Extradition
Act was promulgated in 1962, or as it was later amended. The importance of this distinction is that the former Act, in the
form in which it existed in 1962, did not permit bail in cases of murder and treason, whereas the 1968 amendment to that
Act deleted this prohibition. It falls outside the scope of this work to enter into a full discussion of the topic. It is
nevertheless submitted that strong grounds exist for concluding that references in the Extradition Act to 'preparatory
examinations' are references to the preparatory examinations of the Criminal Procedure Act 1955, the terms of which have
been incorporated into the Extradition Act: the repeal of the earlier measure does not operate to repeal the incorporated
provisions, which have become part of the Extradition Act. [11]
The magistrate must exercise his power to grant bail with extreme caution [12] in a manner that would not conflict with
treaty obligations between the foreign
Page 288
state and the custodian state. [13] His power appears to be circumscribed by the section, which restricts the magistrate to
exercise his power of granting bail for the purpose of holding the enquiry only. [14] If the magistrate is of the opinion that
for any reason it would be unreasonable or unjust or too severe a punishment to surrender the suspect to the foreign
state, he may discharge the suspect, or order his surrender only after the expiration of a period stated, or make any order
which he deems just. [15] It is submitted that the section is wide enough to allow the magistrate to grant the suspect bail if,
in his discretion, to do so would serve the interests of justice. It must be noted, however, that this discretion would be
available to the magistrate only if the preconditions stated in s 12(2) of the Extradition Act have been met. Even then, the
only conceivable instance in which bail will be granted will be where the magistrate has ordered the surrender of the suspect
only at some future date. [16]
Subject to this limited discretion, a magistrate, having made his order at the conclusion of the enquiry, would be functus
officio and would have no further authority to extend bail to the suspect (unless, of course, an appeal was noted and the
magistrate acted in terms of s 13 of the Extradition Act, which is returned to below). [17] However, notwithstanding the fact
that the Extradition Act does not expressly confer any power to grant bail upon a High Court, it has been held that a High
Court possesses the inherent jurisdiction to grant bail subsequent to an extradition order having been made by a
magistrate—even where that order is not appealed against. Thus, in Veenendal v Minister of Justice [18] Mahomed J, in
pondering the question whether in law he had the jurisdiction to grant bail to a suspect in respect of whom an extradition
order had been made and in the absence of a pending appeal, said the following:
Dealing first w ith the question of jurisdiction, I had initially questioned w hether this Court did indeed have the jurisdiction to grant bail
w here there w ere no statutory provisions authorising such a course. W hatever the validity of my initial doubts might have been,
counsel for the applicant has draw n my attention to a judgment of the Full Court of this Division in the case of S v Hlongwane 1989 (4)
SA 79 (T) as authority for the proposition that the Court does indeed have an inherent jurisdiction to grant bail in appropriate
circumstances. More particularly, in Hlongwane's case, the Court expressly approved a previous judgment by my Brother Harms w here
he had held that the Court indeed had an inherent jurisdiction to grant bail in circumstances substantially similar to the circumstances
in the present case. I say 'substantially similar' and not 'identical' because there w as indeed an appeal pending in the
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case before Harms J to w hich reference is made in Hlongwane's case. I do not think, how ever, that that distinction affects the principle
behind the Court's finding in Hlongwane's case and I am accordingly of the view that, notw ithstanding the fact that no appeal is
presently pending in the case of the applicant, I have an inherent jurisdiction to grant bail follow ing upon the judgment of the Court in
Hlongwane's case and the judgment of Harms J in Ex parte Graham: In re United States of America v Graham 1987 (1) SA 368 (T).
The validity of the aforequoted judgment and also that in Ex parte Graham: In re United States of America v Graham [19]
remains unaffected by the introduction into s 13 of the Extradition Act of the power to grant bail pending appeal against an
extradition order.
19.3 Appeal against refusal of bail

Section 13 of the Extradition Act 1962 allows for appeal against an order made by the magistrate presiding at an extradition
enquiry. However, the section allows for appeals against orders made in terms of ss 10 and 12 of the Extradition Act only.
It is clear, therefore, that the Extradition Act makes no provision for a suspect to appeal against an order, including a
refusal of bail, made by the magistrate under s 9 of that Act. If it is accepted that a magistrate may, in his discretion, allow
bail pending the surrender of a suspect to a foreign state at some future date (in terms of s 12), then it follows that a
refusal of bail under that section is appealable in terms of s 13 of the Extradition Act.
The question arises whether a suspect who has been refused bail under s 9 has any further recourse to the law. In the
absence of any provision in the Extradition Act for appeal against such refusal, it has been suggested [20] that a suspect
whose extradition is sought by a foreign state and who has been refused bail by a magistrate holding an extradition
enquiry, may appeal against such refusal by virtue of the provisions of s 65 of the current Criminal Procedure Act. It is
submitted that there is no justification for such a suggestion. First, the wording of s 65 of the Act does not permit an
inference that extradition enquiries are covered by it. It must be remembered that s 65 of the Act relates to appeals against
judgments or orders arising from sui generis proceedings conducted according to the procedure prescribed by the Criminal
Procedure Act. An extradition enquiry, even though it follows a certain procedure prescribed by the Acts relating to criminal
procedure and adopted by virtue of the provisions of the Extradition Act for the purpose of conducting such an enquiry,
does not constitute or form part of proceedings which may be remotely equated with bail. It is merely a court of enquiry
that happens to be presided over by a magistrate. In Minister of Justice v Bagattini [21] Botha J, in considering the nature
of an enquiry held in terms of s 9 of the Extradition Act, remarked:
Page 290
Such proceedings are in the nature of a lis betw een the Minister and the person w hose extradition is sought, and the magistrate
holding the enquiry is called upon to perform statutory functions which are obviously quasi-judicial in nature. [22] (Emphasis added.)
It is therefore submitted that, in the absence of clear indication in the Extradition Act, sundry provisions of the current
Criminal Procedure Act, which did not even exist at the time the Extradition Act was created in 1962, cannot be co-opted for
application to extradition proceedings. Secondly, and more importantly, s 65 of the Criminal Procedure Act allows for
appeals against the refusal of bail by a lower court. The refusal of bail by a magistrate in terms of s 9(2) of the Extradition
Act is not a refusal by a lower court. [23]
The better view, it is submitted, is that the High Court may reverse the refusal of bail by a magistrate presiding over an
extradition enquiry by virtue of its inherent common-law jurisdiction to grant bail. Whether the intervention of the High
Court in such circumstances should be seen as the exercise of an appellate jurisdiction or simply the re-hearing of a bail
application is not clear. [24] However, the net result of such intervention would be to effect the release on bail of a suspect
whose release may be said to be consonant with the interests of justice—a result envisaged and, it is suggested, enjoined,
by s 35(1)(f) of the Constitution. [25]
A further anomaly should be pointed out: no provision is made in the Extradition Act for any other party to the bail
proceedings to appeal the outcome of the application. It is difficult to explain the legislature's failure to enact a counterpart
of s 65A of the Act (which allows for the attorney-general to appeal against the grant of bail), especially considering the
description of an extradition enquiry as 'a lis' between the host government and the suspect [26] which surely brings to
mind the potential interest of departments concerned with home affairs and foreign affairs, in addition to the prosecuting
authority.
Page 291
19.4 Bail after committal: some other jurisdictions

The position with regard to bail once a suspect has been committed in terms of an extradition order has not always been
clear in South African law. As will be seen below, since 1996 [27] the Extradition Act has allowed for appeals pending appeal
against a committal order in terms of which the request for extradition was granted. This brought South African law on the
topic in line with some other relevant jurisdictions.
In England, when considering whether the absence of an express statutory power to grant bail following an extradition
order should be interpreted as an ouster of the court's jurisdiction, Russell LJ said the following in R v Spilsbury: [28]
If it does, a curious result w ould follow , for it is clear that the magistrate may remand the defendant pending the inquiry, and the
inquiry may extend over a long period of time, and it is also clear that the magistrate may admit the defendant to bail as often as he
remands him; it is also conceded, that w hen the defendant is returned to the place to w hich his return is demanded, the tribunal
having jurisdiction in that place can admit him to bail pending the result of the trial; and, this being so, it w ould be a strange result if
there w ere no jurisdiction to admit him to bail during the period betw een the making of the order for his return and his return.
In Ireland, a comparison was drawn by the court in Attorney-General v Gilliland [29] between the power of the courts to
grant bail in criminal matters, and extradition proceedings, and concluded that the test in the latter was no more stringent
than in criminal trials:
In either case the State's duty must operate in a w ay that w ill not conflict w ith the fundamental right to personal liberty of a person
w ho stands unconvicted of an offence under the law of the State. The right to personal liberty should not be lost save w here the loss
is necessary for the effectuation of the duty of the State as the guardian of the common good: in the extradition cases the duty
normally being to fulfil treaty obligations and in ordinary criminal cases normally to enable the criminal process to advance to a proper
trial. If in either case a court is satisfied that there is no real likelihood that the prisoner, if granted bail, w ould frustrate the State's
duty by absconding, I do not consider that bail should be refused on the absconding test.
In the United States of America the Supreme Court in Wright v Henkel, [30] while not denying the existence of judicial
authority to grant bail in extradition matters, held that a presumption existed against the grant of bail by virtue of the
[31]
'compelling State interest' to ensure the proper execution of extradition orders. In Paretti v United States [31] the court was
asked to adjudicate the matter of bail pending extradition where the argument had been raised that a more stringent
Page 292
test applied in extradition cases than in criminal trials on account of the state's overriding obligation to return the suspect
to the requesting country. It was held: [32]
The problem w ith the government's argument is the implicit premise that its interest in the enforcement of extradition treaties is
materially different from and greater than its interest in the enforcement of our ow n criminal law s. In the last analysis, the purpose of
extradition treaties is to strengthen our hand in enforcing our ow n law s through the co-operation of other countries in apprehending
fugitives. Yet the government implicitly argues that the law enforcement interest served by extradition treaties is somehow different
from and greater than its interest in enforcing our domestic law s. The government fails to suggest any difference, and w e can fathom
none. If the government's interest in avoiding all risk of flight pending an extradition hearing justified detention w ithout bail, then it
stands to reason that the same interest w ould also justify pre-trial detention in domestic criminal cases. Yet if Parretti had been
arrested on charges of violating our ow n law s against business fraud, and w as neither a flight risk nor a danger to the community, it
w ould be unthinkable that he could be held w ithout bail pending trial.
In a learned judgment in Alexander v Minister of Justice [33] the Namibia Supreme Court (per Strydom AJA) declared s 21 of
the (Namibian) Extradition Act 11 of 1996 to be unconstitutional by reason of its provision that bail could not be granted
once a committal order had been made.
19.5 Bail pending appeal against extradition order

Section 13 of the Extradition Act provides that anyone against whom an extradition order has been made may appeal
against such order to the High Court having jurisdiction. Until 1996 this Act was silent on the question of whether a
prospective appellant was entitled to be released on bail pending his appeal. As a result, it was left to the High Court to
assert a suspect's right to liberty notwithstanding the absence of statutory empowerment to do so, as was the case in Ex
parte Graham: In re United States of America v Graham. [34] This position was legislatively regularised by the introduction
in 1996 [35] of two new sub-sections, which were added to s 13. The first of these reads as follows:
13(3) Any person w ho has lodged an appeal in terms of sub-section (1) may at any time before such appeal has been disposed of,
apply to the Magistrate w ho issued the order in terms of s 10 or 12 to be released on bail on condition that such person deposits w ith
the Clerk of Court [sic], or w ith a member of the Department of Correctional Services, or w ith any police official at the place w here
such person is in custody, the sum of money determined by the Magistrate.
The sub-section has once again been worded in somewhat imprecise terms. Thus, the jurisdiction to grant bail vests in the
magistrate who issued the extradition order until such time as the appeal 'has been disposed of': even if argument of the
appeal should therefore have commenced, it is the magistrate
Page 293
who would retain jurisdiction to consider and grant bail, to the exclusion of the court of appeal. Not only is this a clumsy
and impractical arrangement, but it is one that may lead to serious logistical problems if the magistrate who issued the
order should become unavailable or if an appeal in respect of which argument has commenced should be protracted by
reason of, for example, postponement for further argument, or written argument, or judgment.
It will also be seen that, as with bail granted in terms of the Criminal Procedure Act, the grant of bail is made absolutely
conditional upon the payment of a sum of money. In contrast to the position applicable to bail granted by courts under the
Act, no provision is made for an alternative such as the furnishing of guarantees in lieu of payment, or for release on
warning.
The other sub-section added to s 13 of the Extradition Act in 1996 reads as follows:
13(4) If the Magistrate orders that the applicant be released on bail in terms of sub-section (3), the provisions of sections 66, 67, 68
and 307(3), (4) and (5) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall mutatis mutandis apply to bail so granted, and
any reference in those sections to—
(a) the prosecutor w ho may act under those sections, shall be deemed to be a reference to such persons w ho may appear at an
enquiry held under this Act;
(b) the accused, shall be deemed to be a reference to the person released on bail under sub-section (3);
(c) the court, shall be deemed to be a reference to the Magistrate w ho released such person on bail; and
(d) the trial or sentence, shall be deemed to be a reference to the Magistrate's order under ss 10 or 12.
Another glaring anomaly emerges from this sub-section: even though the amendment in question of the Extradition Act
was effected only in 1996, no provision has been made for rendering an extradition appellant's non-compliance with his bail
conditions a criminal offence—a result which was introduced into the Criminal Procedure Act as s 67A thereof in 1995. Clearly
no significance should be read into this omission, and it should be ascribed to simply another legislative oversight.
Similarly, it is submitted that the legislature's omission to provide for bail in the event of the launching of a judicial review
of extradition proceedings is an oversight to which no special meaning attaches. As a consequence of this lacuna, a suspect
who takes an extradition magistrate on review will be obliged to rely on the High Court's inherent jurisdiction to grant
bail. [36]
[1] Persons formally accused and actually convicted, and who have absconded from the foreign state in which they were being prosecuted or in
which they had been convicted, may also be extradited to stand trial or serve sentence. However, for the sake of brevity, the term 'suspect' is used
throughout this discussion.
[2] See, generally, Harksen v President of the RSA 2000 (1) SAC R 300 (C C ).
[3] Barrie 1969 THRHR 176. It must be pointed out, however, that increasing use is made of international treaties and reciprocal municipal
instruments such as the International C o-operation in C riminal Matters legislation—not to mention unorthodox and scandalous measures such as the
infamous practice of 'rendition' (read forcible abduction) employed by the United States of America with the silent co-operation and approval of some
of its international partners. See also Nduli v Minister of Justice 1978 (1) SA 893 (A) where N was abducted from foreign soil by members of the South
African Police and removed to South African soil, where he was formally arrested. The Appellate Division held that the abduction was no bar to the trial
jurisdiction of a South African court over N, provided the arrest itself was lawful. See also Ndhlovu v Minister of Justice 1976 (4) SA 250 (N); S v
Heyman 1966 (4) SA 598 (A); Eichmann v Attorney-General of the Govt of Israel (1962) 136 ILR 277, where the position in international law is
discussed. These matters fall outside the scope of this work.
[4] Act 67 of 1962.
[5] See Act 67 of 1962, s 13(3) and (4), introduced by s 11 of Act 77 of 1996.
[6] Act 67 of 1962, s 9(2). This creates a fundamental problem: is the magistrate required to proceed in terms of preparatory examination procedure
existing at the time when the Extradition Act was enacted —or in accordance with current preparatory examination procedure? The problem is
discussed below.
[7] Act 67 of 1962, s 9(2).
[8] Act 56 of 1955, ss 54-86.
[9] Sections 123-143 of the Act.
[10] By Act 56 of 1955, s 87(1). In terms of this section no accused person shall be entitled to bail before being committed for trial or sentence, but
the magistrate may in his discretion release the accused on bail before conclusion of the preparatory examination. From 1955 to 1968, when the 1955
Act was amended, this could not be done in cases of murder or treason, but this restriction was removed in 1968. Does the Extradition Act incorporate
the provisions of the old C riminal Procedure Act as they existed in 1962, or as subsequently amended? It is submitted that the Extradition Act cannot
be taken to refer to sections of subsequent legislation, for the legislature, when it enacted the Extradition Act, had in mind the limitation of bail in
extradition proceedings along the lines of the criminal procedure legislation then in existence. This limitation is of vital importance to a foreign suspect
whose extradition for murder is sought and who applies for bail.
[11] Solicitor-General v Malgas 1918 AD 489 491.
[12] R v Spilsbury [1898] 2 QBD 615; R v Blumenthal 1924 TPD 358.
[13] Phillips (1922) 128 LT 113.
[14] Lansdown & C ampbell South African Criminal Law and Procedure vol v (1982) 49. The Afrikaans text, which is not the signed version, creates a
different impression by stating that the magistrate 'het by die ondersoek' the same powers as under the preparatory examination.
[15] Act 67 of 1962, s 12(2).
[16] See also Lansdown & C ampbell 49. But cf Stanbrook The Law and Practice of Extradition (1980) 22. It is of some interest that the Extradition Act
67 of 1962 was amended by s 27 of the Protection of C onstitutional Democracy against Terrorist and Related Activities Act 33 of 2004 by the
introduction of a new s 22, which reads in part that 'the provisions of this section shall in no way affect the application of sections 11(6)(iv) or 12(2)
(ii) of this Act.' (Emphasis added.) Alas, the Extradition Act has neither a s 11(6)(iv) nor a s 12(2)(ii)!
[17] See Veenendal v Minister of Justice 1993 (1) SAC R 154 (T) 156a.
[18] At 158f-h.
[19] 1987 (1) SA 368 (T); and see also S v Hlongwane 1989 (4) SA 79 (T). The inherent power of the High C ourt to grant bail pending a further
appeal to the Supreme C ourt of Appeal against a magistrate's extradition order was discussed in S v Thornhill (2) 1998 (1) SAC R 177 (C ), and is dealt
with in the following paragraph.
[20] By Lansdown & C ampbell 49.
[21] 1975 (4) SA 252 (T).
[22] At 259D. Botha J refused to agree with the contention that an enquiry under ss 9 and 10 of the Extradition Act 1962 could be equated with a
preparatory examination.
[23] 'Lower court' is defined in the C riminal Procedure Act 1977 as a court established in terms of the Magistrates' C ourts Act 32 of 1944. The former
C riminal Procedure Act distinguished between 'magistrate' and 'inferior court'—see s 97. It is therefore apparent that S v Blumenthal (above) is no
longer authority on the question of bail refused in extradition proceedings, as it has been overtaken by legislative events.
[24] See, for instance, the High C ourt's assumption and exercise of its inherent jurisdiction in cases concerning bail emanating from the decisions of
military courts, and discussed in C h 18 above. And cf Ex parte Reckling 1920 C PD 567; S v Blumenthal (above); Ex parte Graham: In re United States
of America v Graham 1987 (1) SA 368 (T); S v Hlongwane (above); Veenendal v Minister of Justice 1993 (2) SA 137 (T); S v Thornhill (2) (above).
[25] Section 35(1)(f) of the C onstitution provides as follows:
'Everyone who is arrested for allegedly committing an offence has the right—
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.'
In S v Thornhill (2) (above) 181a Ngcobo J saw the section as a reaffirmation of the inherent jurisdiction of the High C ourt to grant bail.
[26] In Bagattini (above).
[27] The power to grant bail pending appeal against a committal order was introduced by Act 77 of 1996, s 11.
[28] Above 620.
[29] [1985] IR 643 646.
[30] (1903) US 40.
[31] (1997) 112 F 3d 1363.
[32] At 1383. See also Persily 1998 Stanford JIL 407 426.
[33] (SA 32/2008) [2010] NASC 2 (9 April 2010).
[34] Above.
[35] By Act 77 of 1996, s 11.
[36] See especially Ex parte Graham: In re United States of America v Graham (above); Veenendal v Minister of Justice (above).
Page 295
Table of Contents
Appendices
Appendices
Appendix A Criminal Procedure Act 51 of 1977, ss 50, 58–72A, 159A, 304–316
Appendix B Criminal Procedure Act 51 of 1977, Schedule 1
Appendix C Criminal Procedure Act 51 of 1977, Schedule 2 Part III
Appendix D Criminal Procedure Act 51 of 1977, Schedule 5
Appendix E Criminal Procedure Act 51 of 1977, Schedule 6
Appendix F Criminal Procedure Act 51 of 1977, Schedule 7
Appendix G Extradition Act 67 of 1962, ss 9–13
Appendix H Quickfinder: Bail application ito s 60(1)
Appendix I Quickfinder: Bail application ito s 60(11)(a)
Appendix J Quickfinder: Bail application ito s 60(11)(b)
Appendix K Quickfinder: Notice of appeal ito s 65
Appendix L Quickfinder: Notice of appeal ito s 65
Appendix M Quickfinder: Bail pending petition and appeal to High Court
Appendix N Quickfinder: Bail pending petition and appeal to SCA
Page 297
Appendix A
Criminal Procedure Act 51 of 1977
SECTION 50
50 Procedure after arrest
(1) (a) Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason,
shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is
expressly mentioned in the warrant.
(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed
of his or her right to institute bail proceedings.
(c) Subject to paragraph (d), if such an arrested person is not released by reason that-
(i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of section 59 or 59A,
he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the
arrest.
(d) If the period of 48 hours expires-
(i) outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought
before a lower court not later than the end of the first court day;
(ii) or will expire at, or if the time at which such period is deemed to expire under subparagraph (i) or (iii) is or will
be, a time when the arrested person cannot, because of his or her physical illness or other physical condition,
be brought before a lower court, the court before which he or she would, but for the illness or other condition,
have been brought, may on the application of the prosecutor, which, if not made before the expiration of the
period of 48 hours, may be made at any time before, or on, the next succeeding court day, and in which the
circumstances relating to the illness or other condition are set out, supported by a certificate of a medical
practitioner, authorise that the arrested person be detained at a place specified by the court and for such
period as the court may deem necessary so that he or she may recuperate and be brought before the court:
Provided that the court may, on an application as aforesaid, authorise that the arrested person be further
detained at a place specified by the court and for such period as the court may deem necessary; or
[Sub-para. (ii) substituted by s. 3 (a) of Act 34 of 1998.]
(iii) at a time when the arrested person is outside the area of jurisdiction of the lower court to which he or she is
being brought for the purposes of further
Page 298
detention and he or she is at such time in transit from a police station or other place of detention to such court,
the said period shall be deemed to expire at the end of the court day next succeeding the day on which such
arrested person is brought within the area of jurisdiction of such court.
[Sub-s. (1) amended by s. 1 of Act 56 of 1979 and substituted by s. 1 (a) of Act 85 of 1997.]
(2) For purposes of this section-
(a) 'a court day' means a day on which the court in question normally sits as a court and 'ordinary court day' has a
corresponding meaning; and
(b) 'ordinary court hours' means the hours from 9:00 until 16:00 on a court day.
[Sub-s. (2) substituted by s. 1 (a) of Act 85 of 1997.]
(3) Subject to the provisions of subsection (6), nothing in this section shall be construed as modifying the provisions of
this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to
appear in court.
[Sub-s. (3) substituted by s. 1 (a) of Act 75 of 1995 and by s. 8 (1) (a) of Act 62 of 2000.]
(4) and (5) . . . . . .
[Sub-ss. (4) and (5) added by s. 37 of Act 122 of 1991 and deleted by s. 99 (1) of Act 75 of 2008.]
(6) (a) At his or her first appearance in court a person contemplated in subsection (1) (a) who-
(i) was arrested for allegedly committing an offence shall, subject to this subsection and section 60-
(aa) be informed by the court of the reason for his or her further detention; or
[Item (aa) substituted by s. 3 (b) of Act 34 of 1998.]
(bb) be charged and be entitled to apply to be released on bail,
and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be
released; or
(ii) was not arrested in respect of an offence, shall be entitled to adjudication upon the cause for his or her arrest.
(b) An arrested person contemplated in paragraph (a) (i) is not entitled to be brought to court outside ordinary court
hours.
(c) The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a
magistrate's court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in
writing by him or her may, if he or she deems it expedient or necessary for the administration of justice in a particular case,
direct in writing that the application must be considered by a regional court.
[Para. (c) substituted by s. 8 (1) (b) of Act 62 of 2000.]
(d) The lower court before which a person is brought in terms of this subsection, may postpone any bail proceedings
or bail application to any date or
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court, for a period not exceeding seven days at a time, on the terms which the court may deem proper and which are not
inconsistent with any provision of this Act, if-
(i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on
the bail application;
(ii) the prosecutor informs the court that the matter has been or is going to be referred to an attorney-general for
the issuing of a written confirmation referred to in section 60 (11A);
(iii) . . . . . .
[Sub-para. (iii) deleted by s. 8 (1) (c) of Act 62 of 2000.]
(iv) it appears to the court that it is necessary to provide the State with a reasonable opportunity to-
(aa) procure material evidence that may be lost if bail is granted; or
(bb) perform the functions referred to in section 37; or
(v) it appears to the court that it is necessary in the interests of justice to do so.
[Sub-s. (6) added by s. 1 (b) of Act 75 of 1995 and substituted by s. 1 (b) of Act 85 of 1997.]
(7) . . . . . .
[Sub-s. (7) added by s. 1 (b) of Act 75 of 1995 and deleted by s. 1 (c) of Act 85 of 1997.]
SECTIONS 58-72A
58 Effect of bail
The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall be released
from custody upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his bail, and that
he shall appear at the place and on the date and at the time appointed for his trial or to which the proceedings relating to
the offence in respect of which the accused is released on bail are adjourned, and that the release shall, unless sooner
terminated under the said provisions, endure until a verdict is given by a court in respect of the charge to which the offence
in question relates, or, where sentence is not imposed forthwith after verdict and the court in question extends bail, until
sentence is imposed: Provided that where a court convicts an accused of an offence contemplated in Schedule 5 or 6, the
court shall, in considering the question whether the accused's bail should be extended, apply the provisions of section 60
(11) (a) or (b), as the case may be, and the court shall take into account-
(a) the fact that the accused has been convicted of that offence; and
(b) the likely sentence which the court might impose.
[S. 58 amended by s. 2 of Act 85 of 1997.]
59 Bail before first appearance of accused in lower court
(1) (a) An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of
Schedule 2 may, before his or her first
Page 300
appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-
commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the
police station the sum of money determined by such police official.
[Para. (a) substituted by s. 3 of Act 26 of 1987, by s. 1 of Act 126 of 1992 and by s. 2 of Act 75 of 1995.]
(b) The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand
to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the
offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.
(c) The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court
which has jurisdiction.
(2) Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court,
but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by
the court under section 60 at the time of such first appearance.
59A Attorney-general may authorise release on bail
(1) An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect
of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise
the release of an accused on bail.
(2) For the purposes of exercising the functions contemplated in subsections (1) and (3) an attorney-general may, after
consultation with the Minister, issue directives.
(3) The effect of bail granted in terms of this section is that the person who is in custody shall be released from custody-
(a) upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his or her bail at his
or her place of detention contemplated in section 50 (1) (a);
(b) subject to reasonable conditions imposed by the attorney-general or prosecutor concerned; or
(c) the payment of such sum of money or the furnishing of such guarantee to pay and the imposition of such
conditions.
(4) An accused released in terms of subsection (3) shall appear on the first court day at the court and at the time
determined by the attorney-general or prosecutor concerned and the release shall endure until he or she so appears before
the court on the first court day.
(5) The court before which a person appears in terms of subsection (4)-
(a) may extend the bail on the same conditions or amend such conditions or add further conditions as contemplated
in section 62; or
(b) shall, if the court does not deem it appropriate to exercise the powers contemplated in paragraph (a), consider
the bail application and, in
Page 301
considering such application, the court has the jurisdiction relating to the powers, functions and duties in respect
of bail proceedings in terms of section 60.
(6) The provisions of section 64 with regard to the recording of bail proceedings by a court apply, with the necessary
changes, in respect of bail granted in terms of this section.
(7) For all purposes of this Act, but subject to the provisions of this section, bail granted in terms of this section shall be
regarded as bail granted by a court in terms of section 60.
[S. 59A inserted by s. 3 of Act 85 of 1997.]
60 Bail application of accused in court
(1) (a) An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled
to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that
the interests of justice so permit.
[Para. (a) substituted by s. 9 (a) of Act 62 of 2000.]
(b) Subject to the provisions of section 50 (6) (c), the court referring an accused to any other court for trial or
sentencing retains jurisdiction relating to the powers, functions and duties in respect of bail in terms of this Act until the
accused appears in such other court for the first time.
[Para. (b) substituted by s. 4 (a) of Act 85 of 1997 and by s. 5 (a) of Act 34 of 1998.]
(c) If the question of the possible release of the accused on bail is not raised by the accused or the prosecutor, the
court shall ascertain from the accused whether he or she wishes that question to be considered by the court.
(2) In bail proceedings the court-
(a) may postpone any such proceedings as contemplated in section 50 (6);
(b) may, in respect of matters that are not in dispute between the accused and the prosecutor, acquire in an
informal manner the information that is needed for its decision or order regarding bail;
(c) may, in respect of matters that are in dispute between the accused and the prosecutor, require of the
prosecutor or the accused, as the case may be, that evidence be adduced;
(d) shall, where the prosecutor does not oppose bail in respect of matters referred to in subsection (11) (a) and (b),
require of the prosecutor to place on record the reasons for not opposing the bail application.
[Sub-s. (2) substituted by s. 4 (b) of Act 85 of 1997.]
(2A) The court must, before reaching a decision on the bail application, take into consideration any pre-trial services
report regarding the desirability of releasing an accused on bail, if such a report is available.
[Sub-s. (2A) inserted by s. 4 of Act 55 of 2003.]
(2B) (a) If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in
subsection (1), and if the payment of a sum of money is to be considered as a condition of bail, the court must hold a
separate inquiry into the ability of the accused to pay the sum of money being considered or any other appropriate sum.
Page 302
(b) If, after an inquiry referred to in paragraph (a), it is found that the accused is-
(i) unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an
amount of money for the release of the accused on bail or must consider the release of the accused in terms of
a guarantee as provided for in subsection (13) (b); or
(ii) able to pay a sum of money, the court must consider setting conditions for the release of the accused on bail
and a sum of money which is appropriate in the circumstances.
[Sub-s. (2B) inserted by s. 9 (a) of Act 66 of 2008.]
(3) If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it
lacks certain important information to reach a decision on the bail application, the presiding officer shall order that such
information or evidence be placed before the court.
(4) The interests of justice do not permit the release from detention of an accused where one or more of the following
grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the
public or any particular person or will commit a Schedule 1 offence; or
[Para. (a) substituted by s. 4 (c) of Act 85 of 1997.]
(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her
trial; or
(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or
intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the
objectives or the proper functioning of the criminal justice system, including the bail system;
(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public
order or undermine the public peace or security; or [sic]
[Para. (e) added by s. 4 (d) of Act 85 of 1997.]
[Sub-s. (4) amended by s. 9 (b) of 62 of 2000.]
(5) In considering whether the ground in subsection (4) (a) has been established, the court may, where applicable, take
into account the following factors, namely-
(a) the degree of violence towards others implicit in the charge against the accused;
(b) any threat of violence which the accused may have made to any person;
(c) any resentment the accused is alleged to harbour against any person;
(d) any disposition to violence on the part of the accused, as is evident from his or her past conduct;
(e) any disposition of the accused to commit offences referred to in Schedule 1, as is evident from his or her past
conduct;
(f) the prevalence of a particular type of offence;
Page 303
(g) any evidence that the accused previously committed an offence referred to in Schedule 1 while released on bail;
or
(h) any other factor which in the opinion of the court should be taken into account.
(6) In considering whether the ground in subsection (4) (b) has been established, the court may, where applicable, take
(a) the emotional, family, community or occupational ties of the accused to the place at which he or she is to be
tried;
(b) the assets held by the accused and where such assets are situated;
(c) the means, and travel documents held by the accused, which may enable him or her to leave the country;
(d) the extent, if any, to which the accused can afford to forfeit the amount of bail which may be set;
(e) the question whether the extradition of the accused could readily be effected should he or she flee across the
borders of the Republic in an attempt to evade his or her trial;
(f) the nature and the gravity of the charge on which the accused is to be tried;
(g) the strength of the case against the accused and the incentive that he or she may in consequence have to
attempt to evade his or her trial;
(h) the nature and gravity of the punishment which is likely to be imposed should the accused be convicted of the
charges against him or her;
(i) the binding effect and enforceability of bail conditions which may be imposed and the ease with which such
conditions could be breached; or
(j) any other factor which in the opinion of the court should be taken into account.
(7) In considering whether the ground in subsection (4) (c) has been established, the court may, where applicable, take
(a) the fact that the accused is familiar with the identity of witnesses and with the evidence which they may bring
against him or her;
(b) whether the witnesses have already made statements and agreed to testify;
(c) whether the investigation against the accused has already been completed;
(d) the relationship of the accused with the various witnesses and the extent to which they could be influenced or
intimidated;
(e) how effective and enforceable bail conditions prohibiting communication between the accused and witnesses are
likely to be;
(f) whether the accused has access to evidentiary material which is to be presented at his or her trial;
(g) the ease with which evidentiary material could be concealed or destroyed; or
(h) any other factor which in the opinion of the court should be taken into account.
(8) In considering whether the ground in subsection (4) (d) has been established, the court may, where applicable, take
Page 304
(a) the fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or
during the bail proceedings;
(b) whether the accused is in custody on another charge or whether the accused is on parole;
(c) any previous failure on the part of the accused to comply with bail conditions or any indication that he or she will
not comply with any bail conditions; or
(d) any other factor which in the opinion of the court should be taken into account.
(8A) In considering whether the ground in subsection (4) (e) has been established, the court may, where applicable, take
(a) whether the nature of the offence or the circumstances under which the offence was committed is likely to induce
a sense of shock or outrage in the community where the offence was committed;
(b) whether the shock or outrage of the community might lead to public disorder if the accused is released;
(c) whether the safety of the accused might be jeopardized by his or her release;
(d) whether the sense of peace and security among members of the public will be undermined or jeopardized by the
release of the accused;
(e) whether the release of the accused will undermine or jeopardize the public confidence in the criminal justice
system; or
(f) any other factor which in the opinion of the court should be taken into account.
[Sub-s. (8A) inserted by s. 4 (e) of Act 85 of 1997.]
(9) In considering the question in subsection (4) the court shall decide the matter by weighing the interests of justice
against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if
he or she were to be detained in custody, taking into account, where applicable, the following factors, namely-
(a) the period for which the accused has already been in custody since his or her arrest;
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with
regard to such delay;
(d) any financial loss which the accused may suffer owing to his or her detention;
(e) any impediment to the preparation of the accused's defence or any delay in obtaining legal representation which
may be brought about by the detention of the accused;
(g) any other factor which in the opinion of the court should be taken into account.
Page 305
(10) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty,
contemplated in subsection (9), to weigh up the personal interests of the accused against the interests of justice.
(11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-
(a) in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in
accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his
or her release;
(b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or
she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to
do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.
[Sub-s. (11) substituted by s. 4 (f) of Act 85 of 1997.]
(11A) (a) If the attorney-general intends charging any person with an offence referred to in Schedule 5 or 6 the attorney-
general may, irrespective of what charge is noted on the charge sheet, at any time before such person pleads to the charge,
issue a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in
Schedule 5 or 6.
(b) The written confirmation shall be handed in at the court in question by the prosecutor as soon as possible after
the issuing thereof and forms part of the record of that court.
(c) Whenever the question arises in a bail application or during bail proceedings whether any person is charged or is to
be charged with an offence referred to in Schedule 5 or 6, a written confirmation issued by an attorney-general under
paragraph (a) shall, upon its mere production at such application or proceedings, be prima facie proof of the charge to be
brought against that person.
[Sub-s. (11A) inserted by s. 4 (g) of Act 85 of 1997.]
(11B) (a) In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court whether-
(i) the accused has previously been convicted of any offence; and
(ii) there are any charges pending against him or her and whether he or she has been released on bail in respect of
those charges.
(b) Where the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph
(a), whether in writing or orally, the accused shall be required by the court to declare whether he or she confirms such
information or not.
(c) The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the
trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of
the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or
her at his or her trial and such evidence becomes admissible in any subsequent proceedings.
Page 306
(d) An accused who wilfully-

(i) fails or refuses to comply with the provisions of paragraph (a); or
(ii) furnishes the court with false information required in terms of paragraph (a),
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.
[Sub-s. (11B) inserted by s. 4 (g) of Act 85 of 1997.]
(12) The court may make the release of an accused on bail subject to conditions which, in the court's opinion, are in the
interests of justice.
(13) The court releasing an accused on bail in terms of this section may order that the accused-
(a) deposit with the clerk of any magistrate's court or the registrar of any High Court, as the case may be, or with a
correctional official at the correctional facility where the accused is in custody or with a police official at the place
where the accused is in custody, the sum of money determined by the court in question; or
(b) shall furnish a guarantee, with or without sureties, that he or she will pay and forfeit to the State the amount
that has been set as bail, or that has been increased or reduced in terms of section 63 (1), in circumstances in
which the amount would, had it been deposited, have been forfeited to the State.
(14) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail
proceedings, have access to any information, record or document relating to the offence in question, which is contained in,
or forms part of, a police docket, including any information, record or document which is held by any police official charged
with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be
construed as denying an accused access to any information, record or document to which he or she may be entitled for
purposes of his or her trial.
[Sub-s. (14) added by s. 4 (h) of Act 85 of 1997 and amended by s. 5 (b) of Act 34 of 1998.]
[S. 60 amended by s. 2 of Act 56 of 1979 and by s. 2 of Act 64 of 1982 and substituted by s. 3 of Act 75 of 1995.]
61 . . . . . .
[S. 61 repealed by s. 4 of Act 75 of 1995.]
62 Court may add further conditions of bail
Any court before which a charge is pending in respect of which bail has been granted, may at any stage, whether the bail
was granted by that court or any other court, on application by the prosecutor, add any further condition of bail-
(a) with regard to the reporting in person by the accused at any specified time and place to any specified person or
authority;
(b) with regard to any place to which the accused is forbidden to go;
Page 307
(c) with regard to the prohibition of or control over communication by the accused with witnesses for the
prosecution;
(d) with regard to the place at which any document may be served on him under this Act;
(e) which, in the opinion of the court, will ensure that the proper administration of justice is not placed in jeopardy
by the release of the accused;
(f) which provides that the accused shall be placed under the supervision of a probation officer or a correctional
official.
[Para. (f) added by s. 38 [1] of Act 122 of 1991.]
63 Amendment of conditions of bail
(1) Any court before which a charge is pending in respect of which bail has been granted may, upon the application of the
prosecutor or the accused, increase or reduce the amount of bail determined under section 59 or 60 or amend or
supplement any condition imposed under section 60 or 62, whether imposed by that court or any other court, and may,
where the application is made by the prosecutor and the accused is not present when the application is made, issue a
warrant for the arrest of the accused and, when the accused is present in court, determine the application.
[Sub-s. (1) substituted by s. 5 of Act 75 of 1995.]
(2) If the court referred to in subsection (1) is a superior court, an application under that subsection may be made to any
judge of that court if the court is not sitting at the time of the application.
63A Release or amendment of bail conditions of accused on account of prison conditions
(1) If a Head of Prison contemplated in the Correctional Services Act, 1998 (Act 111 of 1998), is satisfied that the prison
population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the
human dignity, physical health or safety of an accused-
(a) who is charged with an offence falling within the category of offences-
(i) for which a police official may grant bail in terms of section 59; or
(ii) referred to in Schedule 7;
(b) who has been granted bail by any lower court in respect of that offence, but is unable to pay the amount of bail
concerned; and
(c) who is not also in detention in respect of any other offence falling outside the category of offences referred to in
paragraph (a),
that Head of Prison may apply to the said court for the-
(aa) release of the accused on warning in lieu of bail; or
(bb) amendment of the bail conditions imposed by that court on the accused.
(2) (a) An application contemplated in subsection (1) must be lodged in writing with the clerk of the court, and must-
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(i) contain an affidavit or affirmation by the Head of Prison to the effect that he or she is satisfied that the prison
population of the prison concerned is reaching such proportions that it constitutes a material and imminent
threat to the human dignity, physical health or safety of the accused concerned; and
(ii) contain a written certificate by the Director of Public Prosecutions concerned, or a prosecutor authorised thereto
by him or her in writing, to the effect that the prosecuting authority does not oppose the application.
(b) The accused and his or her legal representative, if any, must be notified of an application referred to in subsection
(1).
(c) The clerk of the court must, without delay, cause the application to be placed before any magistrate or regional
magistrate, as the case may be, who may consider the application in chambers.
(d) The application may be considered in the presence of the accused if the magistrate or regional magistrate deems it
necessary.
(3) (a) If the magistrate or regional magistrate is satisfied that the application complies with the requirements set out in
subsection (2) (a), he or she may-
(i) order the release of the accused from custody and, if the accused is present, warn him or her to appear before
a specified court at a specified time on a specified date in connection with such offence or, as the case may be,
to remain in attendance at the proceedings relating to the offence in question, and the court may, at the time of
such order or at any time thereafter, impose any condition referred to in section 62 in connection with such
release; or
(ii) reduce the amount of bail determined under section 60 and, if deemed appropriate, amend or supplement any
condition imposed under section 60 or 62.
(b) If the accused is absent when an order referred to in paragraph (a) (i) is made or when bail conditions are
amended in terms of paragraph (a) (ii), a correctional official duly authorised by the Head of the prison where the accused is
in custody must-
(i) hand to the accused a certified copy of the said order or of the bail conditions as amended and explain to the
accused the import thereof; and
(ii) return to the clerk of the court a certificate under the hand of that official and signed by the accused, that he or
she has handed the certified copy of such order or conditions to the accused and that he or she has explained
to the accused the import thereof,
and the mere production to the court of the said certificate shall be prima facie proof that the said certified copy was
handed and explained to the accused.
(c) The provisions of section 72 (2) (a) apply, with the necessary changes, in respect of an accused released in terms
of paragraph (a) (i).
(4) (a) The National Director of Public Prosecutions may, in consultation with the Commissioner of Correctional Services,
issue directives regarding-
(i) the establishment of monitoring and consultative mechanisms for bringing an application contemplated in
subsection (1); and
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(ii) the procedure to be followed by a Head of Prison and a Director of Public Prosecutions whenever it appears that
it is necessary to bring an application contemplated in subsection (1).
(b) Any directives issued in terms of paragraph (a) must be submitted to Parliament before they take effect.
64 Proceedings with regard to bail and conditions to be recorded in full
The court dealing with bail proceedings as contemplated in section 50 (6) or which considers bail under section 60 or
which imposes any further condition under section 62 or which, under section 63 or 63A, amends the amount of bail or
amends or supplements any condition or refuses to do so, shall record the relevant proceedings in full, including the
conditions imposed and any amendment or supplementation thereof, or shall cause such proceedings to be recorded in full,
and where such court is a magistrate's court or a regional court, any document purporting to be an extract from the record
of proceedings of that court and purporting to be certified as correct by the clerk of the court, and which sets out the
conditions of bail and any amendment or supplementation thereof, shall, on its mere production in any court in which the
relevant charge is pending, be prima facie proof of such conditions or any amendment or supplementation thereof.
[S. 64 substituted by s. 6 of Act 75 of 1995, by s. 5 of Act 85 of 1997 and by s. 7 of Act 42 of 2001.]
65 Appeal to superior court with regard to bail
(1) (a) An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the
imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an
amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to
the superior court having jurisdiction or to any judge of that court if the court is not then sitting.
(b) The appeal may be heard by a single judge.
(c) A local division of the Supreme Court shall have jurisdiction to hear an appeal under paragraph (a) if the area of
jurisdiction of the lower court in question or any part thereof falls within the area of jurisdiction of such local division.
(2) An appeal shall not lie in respect of new facts which arise or are discovered after the decision against which the appeal
is brought, unless such new facts are first placed before the magistrate or regional magistrate against whose decision the
appeal is brought and such magistrate or regional magistrate gives a decision against the accused on such new facts.
(3) The accused shall serve a copy of the notice of appeal on the attorney-general and on the magistrate or, as the case
may be, the regional magistrate, and the magistrate or regional magistrate shall forthwith furnish the reasons for his
decision to the court or judge, as the case may be.
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(4) The court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless
such court or judge is satisfied that the decision was wrong, in which event the court or judge shall give the decision which
in its or his opinion the lower court should have given.
65A Appeal by attorney-general against decision of court to release accused on bail
(1) (a) The attorney-general may appeal to the superior court having jurisdiction, against the decision of a lower court to
release an accused on bail or against the imposition of a condition of bail as contemplated in section 65 (1) (a).
(b) The provisions of section 310A in respect of an application or appeal referred to in that section by an attorney-
general, and the provisions of section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that
section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms
of paragraph (a) of this subsection.
(2) (a) The attorney-general may appeal to the Appellate Division against a decision of a superior court to release an
accused on bail.
(b) The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall
apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of paragraph (a) of this
subsection.
(c) Upon an appeal in terms of paragraph (a) or an application referred to in paragraph (b) brought by an attorney-
general, the court may order that the State pay the accused concerned the whole or any part of the costs to which the
accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court.
(3) If the appeal of the attorney-general in terms of subsection (1) (a) or (2) (a) is successful, the court hearing the
appeal shall issue a warrant for the arrest of the accused.
66 Failure by accused to observe condition of bail
(1) If an accused is released on bail subject to any condition imposed under section 60 or 62, including any amendment
or supplementation under section 63 of a condition of bail, and the prosecutor applies to the court before which the charge
with regard to which the accused has been released on bail is pending, to lead evidence to prove that the accused has failed
to comply with such condition, the court shall, if the accused is present and denies that he or she failed to comply with such
condition or that his or her failure to comply with such condition was due to fault on his or her part, proceed to hear such
evidence as the prosecutor and the accused may place before it.
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(2) If the accused is not present when the prosecutor applies to the court under subsection (1), the court may issue a
warrant for the arrest of the accused, and shall, when the accused appears before the court and denies that he failed to
comply with the condition in question or that his failure to comply with such condition was due to fault on his part, proceed
to hear such evidence as the prosecutor and the accused may place before it.
(3) If the accused admits that he failed to comply with the condition in question or if the court finds that he failed to
comply with such condition, the court may, if it finds that the failure by the accused was due to fault on his part, cancel the
bail and declare the bail money forfeited to the State.
(4) The proceedings and the evidence under this section shall be recorded.
67 Failure of accused on bail to appear
(1) If an accused who is released on bail-
(a) fails to appear at the place and on the date and at the time-
(i) appointed for his trial; or
(ii) to which the proceedings relating to the offence in respect of which the accused is released on bail are
adjourned; or
(b) fails to remain in attendance at such trial or at such proceedings,
the court before which the matter is pending shall declare the bail provisionally cancelled and the bail money provisionally
forfeited to the State, and issue a warrant for the arrest of the accused.
(2) (a) If the accused appears before court within fourteen days of the issue under subsection (1) of the warrant of
arrest, the court shall confirm the provisional cancellation of the bail and the provisional forfeiture of the bail money, unless
the accused satisfies the court that his failure under subsection (1) to appear or to remain in attendance was not due to
fault on his part.
(b) If the accused satisfies the court that his failure was not due to fault on his part, the provisional cancellation of the
bail and the provisional forfeiture of the bail money shall lapse.
(c) If the accused does not appear before court within fourteen days of the issue under subsection (1) of the warrant
of arrest or within such extended period as the court may on good cause determine, the provisional cancellation of the bail
and the provisional forfeiture of the bail money shall become final.
(3) The court may receive such evidence as it may consider necessary to satisfy itself that the accused has under
subsection (1) failed to appear or failed to remain in attendance, and such evidence shall be recorded.
67A Criminal liability of a person who is on bail on the ground of failure to appear or to comply with a condition
of bail
Any person who has been released on bail and who fails without good cause to appear on the date and at the place
determined for his or her appearance, or to remain in attendance until the proceedings in which he or she must appear have
been disposed of, or who fails without good cause to comply with a condition of bail imposed by the court in terms of
section 60 or 62, including
Page 312
an amendment or supplementation thereof in terms of section 63, shall be guilty of an offence and shall on conviction be
liable to a fine or to imprisonment not exceeding one year.
68 Cancellation of bail
(1) Any court before which a charge is pending in respect of which bail has been granted may, whether the accused has
been released or not, upon information on oath that-
(a) the accused is about to evade justice or is about to abscond in order to evade justice;
(b) the accused has interfered or threatened or attempted to interfere with witnesses;
(c) the accused has defeated or attempted to defeat the ends of justice;
(d) the accused poses a threat to the safety of the public or of a particular person;
(e) the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail
proceedings or where his or her true list of previous convictions has come to light after his or her release on bail;
(f) further evidence has since become available or factors have arisen, including the fact that the accused has
furnished false information in the bail proceedings, which might have affected the decision to grant bail; or
(g) it is in the interests of justice to do so,
issue a warrant for the arrest of the accused and make such order as it may deem proper, including an order that the bail
be cancelled and that the accused be committed to prison until the conclusion of the relevant criminal proceedings.
(2) Any magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under subsection (1),
upon the application of any peace officer and upon a written statement on oath by such officer that-
(a) he or she has reason to believe that-
(i) an accused who has been released on bail is about to evade justice or is about to abscond in order to evade
justice;
(ii) the accused has interfered or threatened or attempted to interfere with witnesses;
(iii) the accused has defeated or attempted to defeat the ends of justice; or
(iv) the accused poses a threat to the safety of the public or of a particular person;
(b) the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail
proceedings or where his or her true list of previous convictions has come to light after his or her release on bail;
(c) further evidence has since become available or factors have arisen, including the fact that the accused has
furnished false information in the bail proceedings, which might have affected the decision to release the accused
on bail; or
(d) it is in the interests of justice to do so,
Page 313
issue a warrant for the arrest of the accused, and may, if satisfied that the ends of justice may be defeated if the accused is
not placed in custody, cancel the bail and commit the accused to prison, which committal shall remain of force until the
conclusion of the relevant criminal proceedings unless the court before which the proceedings are pending sooner reinstates
the bail.
[S. 68 substituted by s. 10 of Act 75 of 1995 and by s. 6 of Act 85 of 1997.]
68A Cancellation of bail at request of accused
Any court before which a charge is pending in respect of which the accused has been released on bail may, upon
application by the accused, cancel the bail and refund the bail money if the accused is in custody on any other charge or is
serving a sentence.
69 Payment of bail money by third person
(1) No provision of section 59 or 60 shall prevent the payment by any person, other that the accused, of bail money for
the benefit of the accused.
(2) Bail money, whether deposited by an accused or any other person for the benefit of the accused, shall,
notwithstanding that such bail money or any part thereof may have been ceded to any person, be refunded only to the
accused or the depositor, as the case may be.
(3) No person shall be allowed to deposit for the benefit of an accused any bail money in terms of this section if the
official concerned has reason to believe that such person, at any time before or after depositing such bail money, has been
indemnified or will be indemnified by any person in any manner against loss of such bail money or that he has received or will
receive any financial benefit in connection with the deposit of such bail money.
70 Remission of bail money
The Minister or any officer acting under his or her authority or the court concerned may remit the whole or any part of
any bail money forfeited under section 66 or 67.
[S. 70 substituted by s. 11 of Act 75 of 1995.]
71 . . . . . .
[S. 71 substituted by s. 4 of Act 26 of 1987 and by s. 39 [2] of Act 122 of 1991 and repealed by s. 99 (1) of Act 75 of 2008.]
CHAPTER 10
RELEASE ON WARNING (ss 72-72A)
72 Accused may be released on warning in lieu of bail
(1) Subject to section 4 (2) of the Child Justice Act, 2008, if an accused who is eighteen years or older is in custody in
respect of any offence and a police
Page 314
official or a court may in respect of such offence release the accused on bail under section 59 or 60, as the case may be,
such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police
official, an offence referred to in Part II or Part III of Schedule 2-
(a) release the accused from custody and warn him to appear before a specified court at a specified time on a
specified date in connection with such offence or, as the case may be, to remain in attendance at the proceedings
relating to the offence in question, and the said court may, at the time of such release or at any time thereafter,
impose any condition referred to in section 62 in connection with such release.
[Para. (a) substituted by s. 7 (a) of Act 33 of 1986.]
(b) ......
[Para. (b) substituted by s. 7 (b) of Act 33 of 1986 and deleted by s. 99 (1) of Act 75 of 2008.]
[Sub-s. (1) amended by s. 5 of Act 26 of 1987, by s. 2 of Act 126 of 1992 and by s. 99 (1) of Act 75 of 2008.]
(2) (a) An accused who is released under subsection (1) (a) and who fails to appear or, as the case may be, to remain in
attendance at the proceedings in accordance with a warning under that paragraph, or who fails to comply with a condition
imposed under subsection (1) (a), shall be guilty of an offence and liable to the punishment prescribed under subsection
(4).
(b) . . . . . .
[Para. (b) deleted by s. 99 (1) of Act 75 of 2008.]
[Sub-s. (2) substituted by s. 7 (c) of Act 33 of 1986.]
(3) (a) A police official who releases an accused under subsection (1) (a) shall, at the time of releasing the accused,
complete and hand to the accused and, in the case of subsection (1) (b), to the person in whose custody the accused is, a
written notice on which shall be entered the offence in respect of which the accused is being released and the court before
which and the time at which and the date on which the accused shall appear.
(b) A court which releases an accused under subsection (1) shall, at the time of releasing the accused, record or cause
the relevant proceedings to be recorded in full, and where such court is a magistrate's court or a regional court, any
document purporting to be an extract from the record of proceedings of that court and purporting to be certified as correct
by the clerk of the court and which sets out the warning relating to the court before which, the time at which and the date
on which the accused is to appear or the conditions on which he was released, shall, on its mere production in any court in
which the relevant charge is pending, be prima facie proof of such warning.
[Para. (b) substituted by s. 7 (d) of Act 33 of 1986.]
(4) The court may, if satisfied that an accused referred to in subsection (2) (a) or a person referred to in subsection (2)
(b), was duly warned in terms of paragraph (a) or, as the case may be, paragraph (b) of subsection (1), and that such
accused or such person has failed to comply with such warning or to comply with a condition imposed, issue a warrant for
his arrest, and may, when he is brought before the court, in a summary manner enquire into his failure and,
Page 315
unless such accused or such person satisfies the court that [3] his failure was not due to fault on his part, sentence him to a
fine not exceeding R300 or to imprisonment for a period not exceeding three months.
[Sub-s. (4) substituted by s. 7 (e) of Act 33 of 1986.]
72A Cancellation of release on warning
Notwithstanding the provisions of section 72 (4), the provisions of section 68 (1) and (2) in respect of an accused who
has been granted bail, are, with the necessary changes, applicable in respect of an accused who has been released on
warning.
SECTION 159A
159A Postponement of certain criminal proceedings through audiovisual link
(1) For purposes of this section and sections 159B, 159C and 159D, unless the context indicates otherwise-
(a) 'appropriate person' means any court official or any other person at the court point and remote point who is
required to be, or may be, present at the proceedings, including the presiding officer, the prosecutor, the
accused person's legal representative, any technical assistant, the clerk of the court, any witnesses, and
members of the public who are entitled to be present;
(b) 'audio link' means a live telephone link between the court point and the remote point which are both equipped
with facilities which will enable audio communication between all appropriate persons at the court point and the
remote point;
(c) 'audiovisual link' means a live television link between the court point and the remote point which are both
equipped with facilities which will enable all appropriate persons at the court point and the remote point to follow
the proceedings and see and hear all the appropriate persons;
(d) 'court point' means the courtroom or other place where the court having jurisdiction is sitting;
(e) 'correctional facility' means a correctional facility as defined in the Correctional Services Act, 1998 (Act 111 of
1998), but does not include a police cell or lock-up; and
(f) 'remote point' means the room or place at the designated correctional facility where the accused person
appearing through audiovisual link is located.
(2) An accused person-
(a) who is over the age of 18 years;
Page 316
(b) who is in custody in a correctional facility in respect of an offence;

(c) who has already appeared before a court;
(d) whose case has been postponed and who is in custody pending his or her trial; and
(e) who is required to appear or to be brought before a court in any subsequent proceedings (whether before,
during or after the trial or conviction and sentence) for the purpose of-
(i) a further postponement of the case; or
(ii) consideration of release on bail in terms of section 60, 63, 63A, 307, 308A or 321, where the granting of
bail is not opposed by the prosecutor or where the granting of bail does not require the leading of evidence,
is not required to appear or to be brought physically before the court but may, subject to the provisions of this section,
sections 159B, 159C and 159D, appear before court by audiovisual link and is deemed to be physically before court, unless
the court directs, in the interests of justice, that he or she appears or be brought physically before it.
(3) Any proceedings in terms of subsection (2) shall be regarded as having been held in the presence of the accused
person if, during the proceedings, that person-
(a) is held in custody in a correctional facility; and
(b) is able to follow the court proceedings and the court is able to see and hear the accused person by means of
audiovisual link.
(4) The remote point shall be regarded as being a part of the court.
[S. 159A inserted by s. 1 of Act 65 of 2008 in respect of certain magisterial districts. [4]]
SECTIONS 304-316
304 Procedure on review
(1) If, upon considering the proceedings referred to in section 303 and any further information or evidence which may, by
direction of the judge, be supplied or taken by the magistrate's court in question, it appears to the judge that the
proceedings are in accordance with justice, he shall endorse his certificate to that effect upon the record thereof, and the
registrar concerned shall then return the record to the magistrate's court in question.
(2) (a) If, upon considering the said proceedings, it appears to the judge that the proceedings are not in accordance with
justice or that doubt exists whether the proceedings are in accordance with justice, he shall obtain from the judicial officer
who presided at the trial a statement setting forth his reasons for convicting the accused and for the sentence imposed,
and shall thereupon lay the record of the proceedings and the said statement before the court of the provincial or local
division having jurisdiction for consideration by that court as a court of appeal: Provided that where the judge concerned is
of the opinion that the conviction or sentence imposed is clearly not in accordance with justice
Page 317
and that the person convicted may be prejudiced if the record of the proceedings is not forthwith placed before the
provincial or local division having jurisdiction, the judge may lay the record of the proceedings before that court without
obtaining the statement of the judicial officer who presided at the trial.
[Para. (a) amended by s. 13 of Act 105 of 1982.]
(b) Such court may at any sitting thereof hear any evidence and for that purpose summon any person to appear to
give evidence or to produce any document or other article.
(c) Such court, whether or not it has heard evidence, may, subject to the provisions of section 312-
(i) confirm, alter or quash the conviction, and in the event of the conviction being quashed where the accused was
convicted on one of two or more alternative charges, convict the accused on the other alternative charge or on
one or other of the alternative charges;
(ii) confirm, reduce, alter or set aside the sentence or any order of the magistrate's court;
(iii) set aside or correct the proceedings of the magistrate's court;
(iv) generally give such judgment or impose such sentence or make such order as the magistrate's court ought to
have given, imposed or made on any matter which was before it at the trial of the case in question; or
(v) remit the case to the magistrate's court with instructions to deal with any matter in such manner as the
provincial or local division may think fit; and
[Sub-para. (v) amended by s. 13 of Act 105 of 1982.]
(vi) make any such order in regard to the suspension of the execution of any sentence against the person
convicted or the admission of such person to bail, or, generally, in regard to any matter or thing connected with
such person or the proceedings in regard to such person as to the court seems likely to promote the ends of
justice.
(3) If the court desires to have a question of law or of fact arising in any case argued, it may direct such question to be
argued by the attorney-general and by such counsel as the court may appoint.
(4) If in any criminal case in which a magistrate's court has imposed a sentence which is not subject to review in the
ordinary course in terms of section 302 or in which a regional court has imposed any sentence, it is brought to the notice of
the provincial or local division having jurisdiction or any judge thereof that the proceedings in which the sentence was
imposed were not in accordance with justice, such court or judge shall have the same powers in respect of such
proceedings as if the record thereof had been laid before such court or judge in terms of section 303 or this section.
[Sub-s. (4) amended by s. 13 of Act 105 of 1982.]
304A Review of proceedings before sentence
(a) If a magistrate or regional magistrate after conviction but before sentence is of the opinion that the proceedings
in respect of which he brought in a conviction are not in accordance with justice, or that doubt exists whether
Page 318
the proceedings are in accordance with justice, he shall, without sentencing the accused, record the reasons for
his opinion and transmit them, together with the record of the proceedings, to the registrar of the provincial
division having jurisdiction, and such registrar shall, as soon as is practicable, lay the same for review in
chambers before a judge, who shall have the same powers in respect of such proceedings as if the record
thereof had been laid before him in terms of section 303.
(b) When a magistrate or a regional magistrate acts in terms of paragraph (a), he shall inform the accused
accordingly and postpone the case to some future date pending the outcome of the review proceedings and, if
the accused is in custody, the magistrate or regional magistrate may make such order with regard to the
detention or release of the accused as he may deem fit.
305 . . . . . .
[S. 305 amended by s. 14 of Act 105 of 1982 and repealed by s. 1 of Act 76 of 1997.]
306 Accused may set down case for argument
(1) A magistrate's court imposing sentence which under section 302 is subject to review, shall forthwith inform the
person convicted that the record of the proceedings will be transmitted within one week, and such person may then inspect
and make a copy of such record before transmission or whilst in the possession of the provincial or local division, and may
set down the case for argument before the provincial or local division having jurisdiction in like manner as if the record had
been returned or transmitted to such provincial or local division in compliance with any order made by it for the purpose of
bringing in review the proceedings of a magistrate's court.
(2) Whenever a case is so set down, whether the offence in question was prosecuted at the instance of the State or at
the instance of a private prosecutor, a written notice shall be served, by or on behalf of the person convicted, upon the
attorney-general at his office not less than seven days before the day appointed for the argument, setting forth the name
and number of the case, the court before which it was tried, the date for which the case has been set down for argument
and the grounds or reasons upon which the judgment is sought to be reversed or altered.
(3) Whether such judgment is confirmed or reversed or altered, no costs shall in respect of the proceedings on review be
payable by the prosecution to the person convicted or by the person convicted to the prosecution.
307 Execution of sentence not suspended unless bail granted
(1) Subject to the provisions of section 308, the execution of any sentence shall not be suspended by the transmission
of or the obligation to transmit the record for review unless the court which imposed the sentence releases the person
convicted on bail.
Page 319
(2) If the court releases such person on bail, the court may-
(a) if the person concerned was released on bail under section 59 or 60, extend the bail, either in the same amount
or any other amount; or
(b) if such person was not so released on bail, release him or her on bail on condition that he or she deposits with
the clerk of the court or with a member of the Department of Correctional Services at the prison where such
person is in custody or with any police official at the place where such convicted person is in custody, the sum of
money determined by the court in question; or
[Para. (b) substituted by s. 8 of Act 64 of 1982 and by s. 12 (a) of Act 75 of 1995 and amended by s. 4 of Act 18 of 1996.]
(c) on good cause shown, permit such person to furnish a guarantee, with or without sureties, that he will pay and
forfeit to the State the sum of money determined under paragraph (b), in circumstances under which such sum,
if it had been deposited, would be forfeited to the State.
(3) It shall be a condition of the release of the person convicted that he shall-
(a) at a time and place specified by the court; and
(b) upon service, in the manner prescribed by the rules of court, of a written order upon him or at a place specified
by the court,
surrender himself in order that effect may be given to any sentence in respect of the proceedings in question.
(3A) (a) If the order contemplated in subsection (3) (b) is not served on the convicted person within 14 days of the
issuing thereof because he or she cannot be found at the address given by him or her at the time of the granting of bail to
him or her, the bail shall be provisionally cancelled and the bail money provisionally forfeited and a warrant for his or her
arrest shall be issued.
(b) The provisions of section 67 (2) in respect of the confirmation or the lapsing of the provisional cancellation of bail
or the forfeiture of bail money, and making final the provisional forfeiture of bail money, the provisions of section 67 (3) in
respect of the hearing of evidence, and the provisions of section 70 in respect of the remission of forfeited bail money, shall
mutatis mutandis apply in respect of bail pending review.
[Sub-s. (3A) inserted by s. 12 (b) of Act 75 of 1995.]
(4) The court may add any condition of release on bail which it may deem necessary or advisable in the interests of
justice, inter alia, as to-
(a) the reporting in person by the person convicted at any specified time and place to any specified person or
authority;
(b) any place to which such person is prohibited to go;
(c) any other matter relating to the conduct of such person.
(5) The court which considers an application for bail under this section shall record the relevant proceedings in full,
including the details referred to in subsection (3) and any conditions imposed under subsection (4).
(6) The provisions of sections 63, 64, 65, 66 and 68 shall mutatis mutandis apply with reference to bail pending review.
[Sub-s. (6) substituted by s. 17 of Act 56 of 1979 and by s. 12 (c) of Act 75 of 1995.]
Page 320
308 . . . . . .
[S. 308 amended by s. 16 of Act 105 of 1982 and by s. 23 of Act 33 of 1986 and repealed by s. 2 of Act 33 of 1997.]
308A Correctional supervision not suspended unless bail granted
The execution of a sentence of correctional supervision referred to in section 276 (1) (h), shall not be suspended by the
transmission of the record for review in terms of section 304 (4), unless the court which imposed the sentence releases the
person convicted-
(a) on bail, in which case the provisions of section 307 (2), (3), (4), (5) and (6) shall mutatis mutandis apply;
(b) on warning on a condition as contemplated in section 307 (3), in which case the provisions of section 72 shall
mutatis mutandis apply to the extent to which they can be applied.
309 Appeal from lower court by person convicted
(1) (a) Subject to section 84 of the Child Justice Act, 2008, any person convicted of any offence by any lower court
(including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 309B or
309C, appeal against such conviction and against any resultant sentence or order to the High Court having jurisdiction:
Provided that the provisions of section 302 (1) (b) shall apply in respect of a person who duly notes an appeal against a
conviction, sentence or order as contemplated in section 302 (1) (a).
[Para. (a) amended by s. 17 of Act 105 of 1982 and substituted by s. 2 (a) of Act 76 of 1997, by s. 2 (a) of Act 42 of 2003, by s. 6
of Act 38 of 2007 and by s. 99 (1) of Act 75 of 2008.]
(b) Where, in the case of a regional court, a conviction takes place within the area of jurisdiction of one provincial
division and any resultant sentence or order is passed or, as the case may be, is made within the area of jurisdiction of
another provincial division, any appeal against such conviction or such sentence or order shall be heard by the last
mentioned provincial division.
(2) An appeal under this section shall be noted and be prosecuted within the period and in the manner prescribed by the
rules of court: Provided that the magistrate against whose decision or order the appeal is to be noted, or if he or she is
unavailable any other magistrate of the court concerned, may on application and on good cause shown, extend such period.
[Sub-s. (2) amended by s. 17 of Act 105 of 1982 and substituted by s. 2 (b) of Act 76 of 1977.]
(3) The provincial or local division concerned shall thereupon have the powers referred to in section 304 (2), and, unless
the appeal is based solely upon a question of law, the provincial or local division shall, in addition to such powers, have the
power to increase any sentence imposed upon the appellant or to impose any other form of sentence in lieu of or in addition
to such sentence: Provided that, notwithstanding that the provincial or local division is of the opinion that any point raised
might be decided in favour of the appellant, no
Page 321
conviction or sentence shall be reversed or altered by reason of any irregularity or defect in the record or proceedings,
unless it appears to such division that a failure of justice has in fact resulted from such irregularity or defect.
[Sub-s. (3) amended by s. 17 of Act 105 of 1982, by s. 8 of Act 107 of 1990 and by s. 38 of Act 105 of 1997.]
(3A) . . . . . .
[Sub-s. (3A) inserted by s. 2 (c) of Act 76 of 1977, substituted by s. 2 (b) of Act 42 of 2003 and deleted by s. 13 of Act 66 of 2008.]
(4) When an appeal under this section is noted, the provisions of-
(a) . . . . . .
[Para. (a) deleted by s. 2 (d) of Act 76 of 1997.]
(b) sections 307 and 308A shall mutatis mutandis apply with reference to the sentence appealed against.
[Para. (b) substituted by s. 51 of Act 129 of 1993 and by s. 2 of Act 33 of 1997.]
(5) When a provincial or local division of the Supreme Court gives a decision on appeal against a decision of the
magistrate's court and the former decision is appealed against, such division of the Supreme Court has the powers in
respect of the granting of bail which a magistrate's court has in terms of section 307.
[Sub-s. (5) added by s. 13 of Act 75 of 1995.]
309A Appeal against conviction and sentence of chiefs, headmen and chiefs' deputies
(1) In hearing any appeal to him under the provisions of section 20 of the Black Administration Act, 1927 (Act 38 of
1927), the magistrate shall hear and record such available evidence as may be relevant to any question in issue and shall
thereupon either-
(a) confirm or vary the conviction and-
(i) confirm the sentence imposed by the chief, headman or chief's deputy and order that the said sentence be
satisfied forthwith; or
(ii) set aside the sentence imposed by the chief, headman or chief's deputy and in lieu thereof impose such
other sentence as in his opinion ought to have been imposed; and
(iii) impose a sentence of imprisonment for a period not exceeding three months on default of compliance
forthwith with the order or sentence made or imposed under subparagraph (i) or (ii); or
(iv) set aside the sentence imposed by the chief, headman or chief's deputy and in lieu thereof impose a
sentence of imprisonment for a period not exceeding three months without the option of a fine;
or-
(b) uphold the appeal and set aside the conviction and sentence.
(2) The magistrate shall issue in respect of any person who has been sentenced to imprisonment under subsection (1), a
warrant for his detention in a prison.
Page 322
309B Application for leave to appeal
(1) (a) Subject to section 84 of the Child Justice Act, 2008, any accused, who wishes to note an appeal against any
conviction or against any resultant sentence or order of a lower court, must apply to that court for leave to appeal against
that conviction, sentence or order.
[Para. (a) substituted by s. 99 (1) of Act 75 of 2008.]
(b) An application referred to in paragraph (a) must be made-
(i) within 14 days after the passing of the sentence or order following on the conviction; or
(ii) within such extended period as the court may on application and for good cause shown, allow.
(2) (a) Any application in terms of subsection (1) must be heard by the magistrate whose conviction, sentence or order is
the subject of the prospective appeal (hereinafter referred to as the trial magistrate) or, if the trial magistrate is not
available, by any other magistrate of the court concerned, to whom it is assigned for hearing.
(b) If the application is to be heard by a magistrate, other than the trial magistrate, the clerk of the court must submit
a copy of the record of the proceedings before the trial magistrate to the magistrate hearing the application: Provided that
where the accused was legally represented at a trial in a regional court the clerk of the court must, subject to paragraph (c),
only submit a copy of the judgment of the trial magistrate, including the reasons for the conviction, sentence or order in
respect of which the appeal is sought to be noted to the magistrate hearing the application.
(c) The magistrate referred to in the proviso to paragraph (b) may, if he or she deems it necessary in order to decide
the application, request the full record of the proceedings before the trial magistrate.
(d) Notice of the date fixed for the hearing of the application must be given to the Director of Public Prosecutions
concerned, or to a person designated thereto by him or her, and the accused.
(3) (a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused
desires to appeal.
(b) If the accused applies orally for such leave immediately after the passing of the sentence or order, he or she must
state such grounds, which must be recorded and form part of the record.
(4) (a) If an application for leave to appeal under subsection (1) is granted, the clerk of the court must, in accordance
with the rules of the court, transmit copies of the record and of all relevant documents to the registrar of the High Court
concerned: Provided that instead of the whole record, with the consent of the accused and the Director of Public
Prosecutions, copies (one of which must be certified) may be transmitted of such parts of the record as may be agreed
upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the High Court concerned may
nevertheless call for the production of the whole record.
Page 323
(b) If any application referred to in this section is refused, the magistrate must immediately record his or her reasons
for such refusal.
(5) (a) An application for leave to appeal may be accompanied by an application to adduce further evidence (hereafter
referred to as an application for further evidence) relating to the conviction, sentence or order in respect of which the appeal
is sought to be noted.
(b) An application for further evidence must be supported by an affidavit stating that-
(i) further evidence which would presumably be accepted as true, is available;
(ii) if accepted the evidence could reasonably lead to a different decision or order; and
(iii) there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial.
(c) The court granting an application for further evidence must-
(i) receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by
the prosecutor and evidence called by the court; and
(ii) record its findings or views with regard to that evidence, including the cogency and the sufficiency of the
evidence, and the demeanour and credibility of any witness.
(6) Any evidence received under subsection (5) shall for the purposes of an appeal be deemed to be evidence taken or
admitted at the trial in question.
[S. 309B inserted by s. 3 of Act 76 of 1997 and substituted by s. 3 of Act 42 of 2003.]
309C Petition procedure
(1) In this section-
(a) 'application for condonation' means an application referred to in the proviso to section 309 (2), or referred to
in section 309B(1) (b) (ii);
(b) 'application for leave to appeal' means an application referred to in section 309B (1) (a);
(c) 'application for further evidence' means an application to adduce further evidence referred to in section 309B
(5) (a); and
(d) 'petition', unless the context otherwise indicates, includes an application referred to in subsection (2) (b) (ii).
(2) (a) If any application-
(i) for condonation;
(ii) for further evidence; or
(iii) for leave to appeal,
is refused by a lower court, the accused may by petition apply to the Judge President of the High Court having jurisdiction
to grant any one or more of the applications in question.
(b) Any petition referred to in paragraph (a) must be made-
(i) within 21 days after the application in question was refused; or
(ii) within such extended period as may on an application accompanying that petition, for good cause shown, be
allowed.
Page 324
(3) (a) If more than one application referred to in subsection (1) relate to the same matter, they should, as far as is
possible, be dealt with in the same petition.
(b) An accused who submits a petition in terms of subsection (2) must at the same time give notice thereof to the
clerk of the lower court referred to in subsection (2) (a).
(4) When receiving the notice referred to in subsection (3), the clerk of the court must without delay submit to the
registrar of the High Court concerned copies of-
(a) the application that was refused;
(b) the magistrate's reasons for refusal of the application; and
(c) the record of the proceedings in the magistrate's court in respect of which the application was refused.
(5) (a) A petition as provided for in this section must be considered in chambers by two judges designated by the Judge
President.
(b) If the judges referred to in paragraph (a) differ in opinion, the petition must also be considered in chambers by the
Judge President or by any other judge designated by the Judge President.
(c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be
deemed to be the decision of all three judges.
(6) Judges considering a petition may-
(a) call for any further information from the magistrate who refused the application in question, or from the
magistrate who presided at the trial to which the application relates, as the case may be; or
(b) in exceptional circumstances, order that the petition or any part thereof be argued before them at a time and
place determined by them.
(7) Judges considering a petition may, whether they have acted under subsection (6) (a) or (b) or not-
(a) in the case of an application referred to in subsection (2) (b) (ii), grant or refuse the application; and
(b) in the case of an application for condonation, grant or refuse the application, and if the application is granted-
(i) direct that an application for leave to appeal must be made, within the period fixed by them, to the court
referred to in section 309B (1); or
(ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection
(2) within the period fixed by them as if it had been refused by the court referred to in section 309B (1);
and
(c) in the case of an application for leave to appeal, subject to paragraph (d), grant or refuse the application; and
(d) in the case of an application for further evidence, grant or refuse the application, and, if the application is granted
the judges may, before deciding the application for leave to appeal, remit the matter to the
Page 325
magistrate's court concerned in order that further evidence may be received in accordance with section 309B (5).
(8) All applications contained in a petition must be disposed of-
(a) as far as is possible, simultaneously; and
(b) as a matter of urgency, where the accused was sentenced to any form of imprisonment that was not wholly
suspended.
(9) Notice of the date fixed for any hearing of a petition under this section, and of any place determined under subsection
(6) for any hearing, must be given to the Director of Public Prosecutions concerned, or to a person designated by him or
her, and the accused.
[S. 309C inserted by s. 3 of Act 76 of 1997 and substituted by s. 3 of Act 42 of 2003.]
309D Explanation of certain rights to unrepresented and certain other accused
(1) (a) An accused, other than a child contemplated in the Child Justice Act, 2008, who is unrepresented at the time he or
she is convicted and sentenced, must be informed by the presiding officer of his or her rights in respect of appeal and legal
representation and of the correct procedures to give effect to these rights.
(b) An accused whose sentence is subject to review in the ordinary course in terms of section 302 (1) (a), must be
informed by the presiding officer that the provisions pertaining to such review-
(i) shall be suspended if he or she appeals against that conviction or sentence; and
(ii) shall cease to apply once judgment in the appeal has been given.
(2) An accused contemplated in subsection (1) (a) in respect of whom an application in terms of the proviso to section
309 (2) or 309B is refused, must be informed by the presiding officer of his or her rights in respect of the proceedings
contemplated in section 309C and legal representation and of the correct procedures involved to give effect to these rights.
(3) If an unrepresented accused has been convicted and sentenced-
(a) to any form of imprisonment that was not wholly suspended; or
(b) to any form of punishment which in view of the presiding officer may lead to substantial injustice for the accused,
and he or she indicates to the presiding officer his or her intention to apply for leave to appeal in terms of section 309B (1)
(a) or for leave to petition in terms of section 309C (2) (a), the presiding officer must refer the accused to the Legal Aid
Board referred to in section 2 of the Legal Aid Act, 1969 (Act 22 of 1969), for the purpose of allowing him or her an
opportunity to request legal representation to assist such accused in his or her application.
[S. 309D inserted by s. 3 of Act 76 of 1997 and substituted by s. 3 of Act 42 of 2003.]
310 Appeal from lower court by prosecutor
(1) When a lower court has in criminal proceedings given a decision in favour of the accused on any question of law,
including an order made under
Page 326
section 85 (2), the attorney-general or, if a body or a person other than the attorney-general or his representative, was the
prosecutor in the proceedings, then such other prosecutor may require the judicial officer concerned to state a case for the
consideration of the provincial or local division having jurisdiction, setting forth the question of law and his decision thereon
and, if evidence has been heard, his findings of fact, in so far as they are material to the question of law.
(2) When such case has been stated, the attorney-general or other prosecutor, as the case may be, may appeal from the
decision to the provincial or local division having jurisdiction.
(3) The provisions of section 309 (2) shall apply with reference to an appeal under this section.
(4) If the appeal is allowed, the court which gave the decision appealed from shall, subject to the provisions of subsection
(5) and after giving sufficient notice to both parties, reopen the case in which the decision was given and deal with it in the
same manner as it should have dealt therewith if it had given a decision in accordance with the law as laid down by the
provincial or local division in question.
(5) In allowing the appeal, whether wholly or in part, the provincial or local division may itself impose such sentence or
make such order as the lower court ought to have imposed or made, or it may remit the case to the lower court and direct
that court to take such further steps as the provincial or local division considers proper.
310A Appeal by attorney-general against sentence of lower court
(1) The attorney-general may appeal against a sentence imposed upon an accused in a criminal case in a lower court, to
the provincial or local division having jurisdiction, provided that an application for leave to appeal has been granted by a
judge in chambers.
(2) (a) A written notice of such an application shall be lodged with the registrar of the provincial or local division concerned
by the attorney-general, within a period of 30 days of the passing of sentence or within such extended period as may on
application on good cause be allowed.
(b) The notice shall state briefly the grounds for the application.
(3) The attorney-general shall, at least 14 days before the day appointed for the hearing of the application, cause to be
served by the deputy sheriff upon the accused in person a copy of the notice, together with a written statement of the
rights of the accused in terms of subsection (4): Provided that if the deputy sheriff is not able so to serve a copy of the
notice, it may be served in any other manner that may on application be allowed.
Page 327
(4) An accused may, within a period of 10 days of the serving of such a notice upon him, lodge a written submission with
the registrar concerned, and the registrar shall submit it to the judge who is to hear the application, and shall send a copy
thereof to the attorney-general.
(5) Subject to the provisions of this section, section 309 shall apply mutatis mutandis with reference to an appeal in
terms of this section.
(6) Upon an application for leave to appeal referred to in subsection (1) or an appeal in terms of this section, the judge or
the court, as the case may be, may order that the State pay the accused concerned the whole or any part of the costs to
which the accused may have been put in opposing the application or appeal, taxed according to the scale in civil cases of the
provincial or local division concerned.
311 Appeal to Appellate Division
(1) Where the provincial or local division on appeal, whether brought by the attorney-general or other prosecutor or the
person convicted, gives a decision in favour of the person convicted on a question of law, the attorney-general or other
prosecutor against whom the decision is given may appeal to the Appellate Division of the Supreme Court, which shall, if it
decides the matter in issue in favour of the appellant, set aside or vary the decision appealed from and, if the matter was
brought before the provincial or local division in terms of-
(a) section 309 (1), re-instate the conviction, sentence or order of the lower court appealed from, either in its
original form or in such a modified form as the said Appellate Division may consider desirable; or
(b) section 310 (2), give such decision or take such action as the provincial or local division ought, in the opinion of
the said Appellate Division, to have given or taken (including any action under section 310 (5)), and thereupon
the provisions of section 310 (4) shall mutatis mutandis apply.
[Para. (b) amended by s. 19 of Act 105 of 1982.]
(2) If an appeal brought by the attorney-general or other prosecutor under this section or section 310 is dismissed, the
court dismissing the appeal may order that the appellant pay the respondent the costs to which the respondent may have
been put in opposing the appeal, taxed according to the scale in civil cases of that court: Provided that where the attorney-
general is the appellant, the costs which he is so ordered to pay shall be paid by the State.
312 Review or appeal and failure to comply with subsection (1) (b) or (2) of section 112
(1) Where a conviction and sentence under section 112 are set aside on review or appeal on the ground that any
provision of subsection (1) (b) or subsection (2) of that section was not complied with, or on the ground that the
provisions of section 113 should have been applied, the court in question shall
Page 328
remit the case to the court by which the sentence was imposed and direct that court to comply with the provision in
question or to act in terms of section 113, as the case may be.
(2) When the provision referred to in subsection (1) is complied with and the judicial officer is after such compliance not
satisfied as is required by section 112 (1) (b) or 112 (2), he shall enter a plea of not guilty whereupon the provisions of
section 113 shall apply with reference to the matter.
313 Institution of proceedings de novo when conviction set aside on appeal or review
The provisions of section 324 shall mutatis mutandis apply with reference to any conviction and sentence of a lower court
that are set aside on appeal or review on any ground referred to in that section.
314 Obtaining presence of convicted person in lower court after setting aside of sentence or order
(1) Where a sentence or order imposed or made by a lower court is set aside on appeal or review and the person
convicted is not in custody and the court setting aside the sentence or order remits the matter to the lower court in order
that a fresh sentence or order may be imposed or made, the presence before that court of the person convicted may be
obtained by means of a written notice addressed to that person calling upon him to appear at a stated place and time on a
stated date in order that such sentence or order may be imposed or made.
(2) The provisions of section 54 (2) and 55 (1) and (2) shall mutatis mutandis apply with reference to a written notice
issued under subsection (1).
CHAPTER 31
APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN SUPERIOR COURTS (ss 315-324)
315 Court of appeal in respect of superior court judgments
(1) (a) In respect of appeals and questions of law reserved in connection with criminal cases heard by a High Court, the
court of appeal shall be the Supreme Court of Appeal, except in so far as subsections (2) and (3) otherwise provides [sic].
(b) and (c) . . . . . .
[Paras. (b) and (c) deleted by s. 15 of Act 66 of 2008.]
[Sub-s. (1) substituted by s. 11 of Act 62 of 2000 and by s. 4 (a) of Act 42 of 2003.]
(2) (a) If an application for leave to appeal in a criminal case heard by a single judge of a High Court (irrespective of
whether he or she sat with or without assessors) is granted under section 316, the court or judge or judges granting the
application shall, if it, he or she or, in the case of the judges referred to in subsections (12) and (13) of that section, they
or the majority of them, is or are
Page 329
satisfied that the questions of law and of fact and the other considerations involved in the appeal are of such a nature that
the appeal does not require the attention of the Supreme Court of Appeal, direct that the appeal be heard by a full court.
(b) Any such direction by the court or a judge of a High Court may be set aside by the Supreme Court of Appeal on
application made to it by the accused or the Director of Public Prosecutions or other prosecutor within 21 days, or such
longer period as may on application to the Supreme Court of Appeal on good cause shown, be allowed, after the direction
was given.
(c) Any application to the Supreme Court of Appeal under paragraph (b) shall be submitted by petition addressed to
the President of the Supreme Court of Appeal, and the provisions of section 316 (8), (9), (10), (11), (12), (13), (14) and
(15) shall apply mutatis mutandis in respect thereof.
[Sub-s. (2) amended by s. 39 (a) of Act 105 of 1997 and substituted by s. 4 (b) of Act 42 of 2003.]
(3) An appeal which is to be heard by a full court in terms of a direction under paragraph (a) of subsection (2) which has
not been set aside under paragraph (b) of that subsection, shall be heard-
(a) in the case of an appeal in a criminal case heard by a single judge of a provincial division, by the full court of the
provincial division concerned;
(b) in the case of an appeal in a criminal case heard by a single judge of a local division other than the Witwatersrand
Local Division, by the full court of the provincial division which exercises concurrent jurisdiction in the area of
jurisdiction of the local division concerned;
(c) in the case of an appeal in a criminal case heard by a single judge of the Witwatersrand Local Division-
(i) by the full court of the Transvaal Provincial Division, unless a direction by the judge president of that
provincial division under subparagraph (ii) applies to it; or
(ii) by the full court of the said local division if the said judge president has so directed in the particular
instance.
(4) An appeal in terms of this Chapter shall lie only as provided in sections 316 to 319 inclusive, and not as of right.
[Sub-s. (4) substituted by s. 10 of Act 107 of 1990 and by s. 39 (b) of Act 105 of 1997.]
(5) In this Chapter-
(a) 'court of appeal' means, in relation to an appeal which in terms of subsection (3) is heard or is to be heard by a
full court, the full court concerned and, in relation to any other appeal, the Supreme Court of Appeal.
[Para. (a) substituted by s. 4 (c) of Act 42 of 2003.]
(b) 'full court' means the court of a provincial division, or the Witwatersrand Local Division, sitting as a court of
appeal and constituted before three judges.
Page 330
316 Applications for condonation, leave to appeal and further evidence

(1) (a) Subject to section 84 of the Child Justice Act, 2008, any accused convicted of any offence by a High Court may
apply to that court for leave to appeal against such conviction or against any resultant sentence or order.
(b) An application referred to in paragraph (a) must be made-
(i) within 14 days after the passing of the sentence or order following on the conviction; or
(ii) within such extended period as the court may on application and for good cause shown, allow.
(c) . . . . . .
[Para. (c) deleted by s. 99 (1) of Act 75 of 2008.]
(2) (a) An application referred to in subsection (1) must be made to the judge whose conviction, sentence or order is the
subject of the prospective appeal (hereafter in this section referred to as the trial judge): Provided that if-
(i) the trial judge is not available; or
(ii) in the case of a conviction before a circuit court the said court is not in sitting,
the application may be made to any other judge of the High Court concerned.
(b) If the application is to be heard by a judge, other than the trial judge, the registrar of the court must submit a
copy of the judgment of the trial judge, including the reasons for the conviction, sentence or order in respect of which the
appeal is sought to be noted to the judge hearing the application.
(c) The judge referred to in paragraph (b) may, if he or she deems it necessary in order to decide the application,
request the full record of the proceedings before the trial judge.
(3) (a) No appeal shall lie against the judgment or order of a full court given on appeal to it in terms of section 315 (3),
except with the special leave of the Supreme Court of Appeal on application made to it by the accused or, where a full court
has for the purposes of such judgment or order given a decision in favour of the accused on a question of law, on
application on the grounds of such decision made to that court by the Director of Public Prosecutions or other prosecutor
against whom the decision was given.
(b) An application to the Supreme Court of Appeal under paragraph (a) shall be submitted by petition addressed to
the President of the Supreme Court of Appeal-
(i) within 21 days after the judgment or order against which appeal is to be made was given; or
(ii) within such extended period as may on application and for good cause shown, be allowed.
(c) The accused or Director of Public Prosecutions or other prosecutor shall, when submitting in accordance with
paragraph (b) the application for special leave to appeal, at the same time give written notice that this has been done to the
registrar of the court against whose decision he or she wishes to appeal, and
Page 331
thereupon such registrar shall forward a certified copy of the record prepared in terms of subsection (7) for the purposes of
such judgment or order, and of the reasons for such judgment or order, to the registrar of the Supreme Court of Appeal.
(d) The provisions of subsections (4), (10), (11), (12), (13), (14) and (15) shall apply mutatis mutandis with
reference to any application and petition contemplated in paragraph (b) of this subsection.
(e) Upon an appeal under this subsection the provisions of section 322 shall apply mutatis mutandis with reference to
the powers of the Supreme Court of Appeal.
(4) (a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused
desires to appeal.
(b) If the accused applies orally for such leave immediately after the passing of the sentence or order, he or she must
state such grounds, which must be recorded and form part of the record.
(5) (a) An application for leave to appeal under subsection (1) may be accompanied by an application to adduce further
evidence (hereafter in this section referred to as an application for further evidence) relating to the prospective appeal.
(b) An application for further evidence must be supported by an affidavit stating that-
(i) further evidence which would presumably be accepted as true, is available;
(ii) if accepted the evidence could reasonably lead to a different verdict or sentence; and
(iii) there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial.
(c) The court granting an application for further evidence must-
(i) receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by
the prosecutor and evidence called by the court; and
(ii) record its findings or views with regard to that evidence, including the cogency and the sufficiency of the
evidence, and the demeanour and credibility of any witness.
(6) Any evidence received under subsection (5) shall for the purposes of an appeal be deemed to be evidence taken or
admitted at the trial in question.
(7) (a) If an application under subsection (1) for leave to appeal is granted and the appeal is not under section 315 (3) to
be heard by the full court of the High Court from which the appeal is made, the registrar of the court granting such
application shall cause notice to be given accordingly to the registrar of the Supreme Court of Appeal without delay, and
shall cause to be transmitted to the said registrar a certified copy of the record, including copies of the evidence, whether
oral or documentary, taken or admitted at the trial, and a statement of the grounds of appeal: Provided that, instead of the
whole record, with the consent of the accused and the Director of Public Prosecutions, copies (one of which must be
certified) may be transmitted of such parts of the record as may be agreed upon by the Director of Public Prosecutions and
the accused to be
Page 332
sufficient, in which event the judges of the Supreme Court of Appeal may nevertheless call for the production of the whole
record.
(b) If an application under subsection (1) for leave to appeal is granted and the appeal is under section 315 (3) to be
heard by the full court of the High Court from which the appeal is made, the registrar shall without delay prepare a certified
copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial, and a
statement of the grounds of appeal: Provided that, instead of the whole record, with the consent of the accused and the
Director of Public Prosecutions, copies (one of which must be certified) may be prepared of such parts of the record as may
be agreed upon by the Director of Public Prosecutions and the accused to be sufficient, in which event the judges of the full
court of the High Court concerned may nevertheless call for the production of the whole record.
(8) (a) If any application-
(i) referred to in subsection (1) (b) (ii) (hereafter in this section referred to as an application for condonation);
(ii) referred to in subsection (1) (b) (i) (hereafter in this section referred to as an application for leave to appeal); or
(iii) referred to in subsection (5) (a) to adduce further evidence (hereafter in this section referred to as an
application for further evidence),
is refused by a High Court, the accused may by petition apply to the President of the Supreme Court of Appeal to grant any
one or more of the applications in question.
(b) Any petition referred to in paragraph (a) must be made-
(i) within 21 days after the application in question was refused; or
(ii) within such extended period as may on an application accompanying that petition, for good cause shown, be
allowed.
(9) (a) If more than one application referred to in subsection (8) (a) relate to the same matter, they should, as far as is
possible, be dealt with in the same petition.
(b) An accused who submits a petition referred to in subsection (8) (a), must at the same time give written notice
thereof to the registrar of the High Court (other than a circuit court) within whose area of jurisdiction the trial took place,
and of which the judge who presided at the trial was a member when he or she so presided.
(10) When receiving notice of a petition as provided for in subsection (9), the registrar shall forward to the registrar of
the Supreme Court of Appeal copies of the-
(a) application or applications that were refused;
(b) the reasons for refusing the application or applications; and
(c) the record of the proceedings in the High Court in respect of which the application was refused.
[Sub-s. (10) substituted by s. 16 (a) of Act 66 of 2008.]
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(11) (a) A petition referred to in subsection (8), including an application referred to in subsection (8) (b) (ii), must be
considered in chambers by two judges of the Supreme Court of Appeal designated by the President of the Supreme Court
of Appeal.
(b) If the judges differ in opinion, the petition shall also be considered in chambers by the President of the Supreme
Court of Appeal or by any other judge of the Supreme Court of Appeal to whom it has been referred by the President.
(c) For the purposes of paragraph (b) any decision of the majority of the judges considering the petition, shall be
deemed to be the decision of all three judges.
(12) The judges considering a petition may-
(a) call for any further information from the judge who refused the application in question, or from the judge who
presided at the trial to which the application relates, as the case may be; or
(b) in exceptional circumstances, order that the application or applications in question or any of them be argued
before them at a time and place determined by them.
(13) The judges considering a petition may, whether they have acted under subsection (12) (a) or (b) or not-
(a) in the case of an application referred to in subsection (8) (b) (ii), grant or refuse the application; and
(b) in the case of an application for condonation grant or refuse the application, and if the application is granted-
(i) direct that an application for leave to appeal must be made, within the period fixed by them, to the High
Court referred to in subsection (8) (a); or
(ii) if they deem it expedient, direct that an application for leave to appeal must be submitted under subsection
(8) within the period fixed by them as if it had been refused by the High Court referred to in subsection (8)
(a); and
(c) in the case of an application for leave to appeal, subject to paragraph (d), grant or refuse the application; and
(d) in the case of an application for further evidence, grant or refuse the application, and, if the application is granted
the judges may, before deciding the application for leave to appeal, remit the matter to the High Court concerned
in order that further evidence may be received in accordance with subsection (5) (c); or
(e) in exceptional circumstances refer the petition to the Supreme Court of Appeal for consideration, whether upon
argument or otherwise, and the Supreme Court of Appeal may thereupon deal with the petition in any manner
referred to in this subsection.
(14) All applications contained in a petition must be disposed of-
(a) as far as is possible, simultaneously; and
(b) as a matter of urgency, where the accused was sentenced to any form of imprisonment that was not wholly
suspended.
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(15) Notice of the date fixed for the hearing of any application under this section, and of any time and place determined
under subsection (12) for any hearing, must be given to the Director of Public Prosecutions concerned and the accused.
[S. 316 amended by s. 21 of Act 105 of 1982, by s. 15 of Act 26 of 1987 and by s. 12 of Act 62 of 2000 and substituted by s. 5 of
Act 42 of 2003.]
[1] Section 38 of Act 122 of 1991 commenced on different dates in respect of different magisterial districts.
[2] Section 39 of Act 122 of 1991 commenced on different dates in respect of different magisterial districts.
[3] The omission from sub-s (4) between the words 'that' and 'his failure' of the words 'there is a reasonable possibility that' was ordered inconsistent
with the C onstitution by the C onstitutional C ourt and sub-s (4) was ordered to be read as though the above omitted words appear therein - GN R888 in
GG 23535 of 28 June 2002. (See S v Singo 2002 (2) SAC R 160 (C C ) & 2002 (4) SA 858 (C C )).
[4] See s 1 of Act 65 of 2008.
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Appendix B
Schedule 1
(Sections 40 and 42)
[Schedule 1 substituted by s. 17 of Act 26 of 1987, amended by s. 8 of Act 122 of 1998 and substituted by s. 68 of Act 32 of
2007.]
Treason.
Sedition.
Public violence.
Murder.
Culpable homicide.
Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, respectively.
Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole
of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007.
Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Robbery.
Kidnapping.
Childstealing.
Assault, when a dangerous wound is inflicted.
Arson.
Malicious injury to property.
Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an
offence.
Theft, whether under the common law or a statutory provision.
Receiving stolen property knowing it to have been stolen.
Fraud.
Forgery or uttering a forged document knowing it to have been forged.
Offences relating to the coinage.
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Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to
immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option
of a fine.
Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this
Schedule or is in such custody in respect of the offence of escaping from lawful custody.
Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
Page 337
Appendix C
Schedule 2
[Part III substituted by s. 5 of Act 126 of 1992.]
Sedition.
Public violence.
Arson.
Murder.
Kidnapping.
Childstealing.
Robbery.
Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
Contravention of the provisions of section 1 and 1A of the Intimidation Act, 1982 (Act 72 of 1982).
Any conspiracy, incitement or attempt to commit any of the above-mentioned offences.
Treason.
Page 338
Appendix D
Schedule 5
(Sections 58 and 60 (11) and (11A) and Schedule 6)
[Schedule 5 added by s. 14 of Act 75 of 1995, substituted by s. 9 of Act 85 of 1997, amended by s. 36 (1) of Act 12 of 2004 and
by s. 27 (1) of Act 33 of 2004 and substituted by s. 68 of Act 32 of 2007.]
Treason.
Murder.
Attempted murder involving the infliction of grievous bodily harm.
Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, respectively, in circumstances other than those referred to in Schedule 6.
Any trafficking related offence by a commercial carrier as contemplated in section 71 (6) of the Criminal Law (Sexual
Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992), if it is alleged that-
(a) the value of the dependence-producing substance in question is more than R50 000,00; or
(b) the value of the dependence-producing substance in question is more than R10 000,00 and that the offence was
committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a
common purpose or conspiracy; or
(c) the offence was committed by any law enforcement officer.
Any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament, or the possession of
an automatic or semi-automatic firearm, explosives or armament.
Any offence in contravention of section 36 of the Arms and Ammunition Act, 1969 (Act 75 of 1969), on account of being in
possession of more than 1 000 rounds of ammunition intended for firing in an arm contemplated in section 39 (2) (a) (i) of
that Act.
Any offence relating to exchange control, extortion, fraud, forgery, uttering, theft, or any offence referred to in Part 1 to 4,
or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and
Combating of Corrupt Activities Act, 2004-
(a) involving amounts of more than R500 000,00; or
(b) involving amounts of more than R100 000,00, if it is alleged that the offence was committed by a person, group
of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or
conspiracy; or
Page 339
(c) if it is alleged that the offence was committed by any law enforcement officer-
(i) involving amounts of more than R10 000,00; or
(ii) as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a
common purpose or conspiracy.
Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively on a child under the age of 16
years.
An offence referred to in Schedule 1-
(a) and the accused has previously been convicted of an offence referred to in Schedule 1; or
(b) which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in
Schedule 1.
The offences referred to in section 4 (2) or (3), 13 or 14 (in so far as it relates to the aforementioned sections) of the
Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004.
Page 340
Appendix E
Schedule 6
(Sections 50 (6), 58 and 60 (11) and (11A))
[Schedule 6 added by s. 10 of Act 85 of 1997, amended by s. 27 (1) of Act 33 of 2004 and substituted by s. 68 of Act 32 of 2007.]
Murder, when-
(a) it was planned or premeditated;
(b) the victim was-
(i) a law enforcement officer performing his or her functions as such, whether on duty or not, or a law
enforcement officer who was killed by virtue of his or her holding such a position; or
(ii) a person who has given or was likely to give material evidence with reference to any offence referred to in
Schedule 1;
(c) the death of the victim was caused by the accused in committing or attempting to commit or after having
committed or having attempted to commit one of the following offences:
(i) Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007, respectively; or
(ii) robbery with aggravating circumstances; or
(d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of
a common purpose or conspiracy.
Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007, respectively-
(a) when committed-
(i) in circumstances where the victim was raped more than once, whether by the accused or by any co-
perpetrator or accomplice;
(ii) by more than one person, where such persons acted in the execution or furtherance of a common purpose
or conspiracy;
(iii) by a person who is charged with having committed two or more offences of rape; or
(iv) by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency
virus;
(b) where the victim-
(i) is a person under the age of 16 years;
(ii) is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable;
or
(iii) is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007; or
Page 341
(c) involving the infliction of grievous bodily harm.

Trafficking in persons for sexual purposes by a person as contemplated in section 71 (1) or (2) of the Criminal Law (Sexual
Robbery, involving-
(a) the use by the accused or any co-perpetrators or participants of a firearm;
(b) the infliction of grievous bodily harm by the accused or any of the co-perpetrators or participants; or
(c) the taking of a motor vehicle.
An offence referred to in Schedule 5-
(a) and the accused has previously been convicted of an offence referred to in Schedule 5 or this Schedule; or
(b) which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in
Schedule 5 or this Schedule.
The offences referred to in section 2, 3 (2) (a), 4 (1), 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the aforementioned
sections) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, section 2 (1) and
(2) of the Civil Aviation Offences Act, 1972 (Act 10 of 1972), section 26 (1) (j) of the Non-Proliferation of Weapons of Mass
Destruction Act, 1993 (Act 87 of 1993) and section 56 (1) (h) of the Nuclear Energy Act, 1999 (Act 46 of 1999).
Page 342
Appendix F
Schedule 7
(Section 59A)
[Schedule 7 added by s. 10 of Act 85 of 1997, amended by s. 10 of Act 34 of 1998 and by s. 16 of Act 62 of 2000 and substituted
by s. 68 of Act 32 of 2007.]
Public violence.
Culpable homicide.
Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Assault, involving the infliction of grievous bodily harm.
Arson.
Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
Malicious injury to property.
Robbery, other than a robbery with aggravating circumstances, if the amount involved in the offence does not exceed
R20 000,00.
Theft and any offence referred to in section 264 (1) (a), (b) and (c), if the amount involved in the offence does not exceed
R20 000,00.
Any offence in terms of any law relating to the illicit possession of dependence-producing drugs.
Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed
R20 000,00.
Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
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Appendix G
Extradition Act 67 of 1962
Sections 9-13
9 Persons detained under warrant to be brought before magistrate for holding of an enquiry
(1) Any person detained under a warrant of arrest or a warrant for his further detention, shall, as soon as possible be
brought before a magistrate in whose area of jurisdiction he has been arrested, whereupon such magistrate shall hold an
enquiry with a view to the surrender of such person to the foreign State concerned.
(2) Subject to the provisions of this Act the magistrate holding the enquiry shall proceed in the manner in which a
preparatory examination is to be held in the case of a person charged with having committed an offence in the Republic and
shall, for the purposes of holding such enquiry, have the same powers, including the power of committing any person for
further examination and of admitting to bail any person detained, as he has at a preparatory examination so held.
(3) Any deposition, statement on oath or affirmation taken, whether or not taken in the presence of the accused person,
or any record of any conviction or any warrant issued in a foreign State, or any copy or sworn translation thereof, may be
received in evidence at any such enquiry if such document is-
(a) (i) accompanied by a certificate according to the example set out in Schedule B;
(ii) authenticated in the manner provided for in the extradition agreement concerned; or
(iii) authenticated by the signature and seal of office-
(aa) of the head of a South African diplomatic or consular mission or a person in the administrative or
professional division of the public service serving at a South African diplomatic, consular or trade office
in a foreign State or a South African foreign service officer grade VII or an honorary South African
consul-general, vice-consul or trade commissioner;
(bb) of any government authority of such foreign State charged with the authentication of documents in
terms of the law of that foreign State;
(cc) of any notary public or other person in such foreign State who shall be shown by a certificate of any
person referred to in item (aa) or (bb) or of any diplomatic or consular officer of such foreign State in
the Republic to be duly authorized to authenticate such document in terms of the law of that foreign
State; or
Page 344
(dd) of a commissioned officer of the South African National Defence Force in the case of a document
executed by a person on active service; or
[Para. (a) substituted by s. 7 (b) of Act 77 of 1996.]
(b) certified as original documents or as true copies or translations thereof by a judge or magistrate, or by an officer
authorized thereto by one of them, of the associated State concerned, in the case of an enquiry with the view to
the extradition of a person to an associated State.
[Sub-s. (3) substituted by s. 2 (a) of Act 46 of 1987 and amended by s. 7 (a) of Act 77 of 1996.]
(4) At any enquiry relating to a person alleged to have committed an offence-
(a) in a foreign State other than an associated State, the provisions of section 10 shall apply;
(b) in an associated State-
(i) the provisions of section 10 shall apply in the case of a request for extradition contemplated in section 4
(1); and
(ii) the provisions of section 12 shall apply in any other case.
10 Enquiry where offence committed in foreign State
(1) If upon consideration of the evidence adduced at the enquiry referred to in section 9 (4) (a) and (b) (i) the magistrate
finds that the person brought before him or her is liable to be surrendered to the foreign State concerned and, in the case
where such person is accused of an offence, that there is sufficient evidence to warrant a prosecution for the offence in the
foreign State concerned, the magistrate shall issue an order committing such person to prison to await the Minister's
decision with regard to his or her surrender, at the same time informing such person that he or she may within 15 days
appeal against such order to the Supreme Court.
(2) For purposes of satisfying himself or herself that there is sufficient evidence to warrant a prosecution in the foreign
State the magistrate shall accept as conclusive proof a certificate which appears to him or her to be issued by an
appropriate authority in charge of the prosecution in the foreign State concerned, stating that it has sufficient evidence at
its disposal to warrant the prosecution of the person concerned.
(3) If the magistrate finds that the evidence does not warrant the issue of an order of committal or that the required
evidence is not forthcoming within a reasonable time, he shall discharge the person brought before him.
(4) The magistrate issuing the order of committal shall forthwith forward to the Minister a copy of the record of the
proceedings together with such report as he may deem necessary.
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11 Minister may order or refuse surrender to foreign State

The Minister may-
(a) order any person committed to prison under section 10 to be surrendered to any person authorized by the
foreign State to receive him or her; or
(b) order that a person shall not be surrendered-
(i) where criminal proceedings against such person are pending in the Republic, until such proceedings are
concluded and where such proceedings result in a sentence of a term of imprisonment, until such sentence
has been served;
(ii) where such person is serving, or is about to serve a sentence of a term of imprisonment, until such
sentence has been completed;
(iii) at all, or before the expiration of a period fixed by the Minister, if he or she is satisfied that by reason of the
trivial nature of the offence or by reason of the surrender not being required in good faith or in the
interests of justice, or that for any other reason it would, having regard to the distance, the facilities for
communication and to all the circumstances of the case, be unjust or unreasonable or too severe a
punishment to surrender the person concerned; or
(iv) if he or she is satisfied that the person concerned will be prosecuted or punished or prejudiced at his or her
trial in the foreign State by reason of his or her gender, race, religion, nationality or political opinion.
12 Enquiry where offence committed in associated State
(1) If upon consideration of the evidence adduced at the enquiry referred to in section 9 (4) (b) (ii) the magistrate finds
that the person brought before him or her is liable to be surrendered to the associated State concerned, the magistrate
shall, subject to the provisions of subsection (2), issue an order for his or her surrender to any person authorized by such
associated State to receive him or her at the same time informing him or her that he or she may within 15 days appeal
against such order to the Supreme Court.
(2) The magistrate may order that the person brought before him or her shall not be surrendered-
(a) where criminal proceedings against such person are pending in the Republic, until such proceedings are
concluded and where such proceedings result in a sentence of a term of imprisonment, until such sentence has
been served;
(b) where such person is serving, or is about to serve a sentence to a term of imprisonment, until such sentence
has been completed; or
(c) at all, or before the expiration of a period fixed by him or her, or make such order as to him or her seems just if
he or she is of the opinion that-
(i) by reason of the trivial nature of the offence or by reason of the surrender not being required in good faith
or in the interests of justice, or that for any other reason it would, having regard for the distance, the
facilities for communication and to all the circumstances
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of the case, be unjust or unreasonable or too severe a punishment to surrender the person concerned; or
(ii) the person concerned will be prosecuted or punished or prejudiced at his or her trial in the associated State
by reason of his or her gender, race, religion, nationality or political opinion.
(3) If the magistrate finds that the evidence does not warrant the issue of an order under subsection (1) or that the
required evidence is not forthcoming within a reasonable time and the delay is not caused by the person brought before him
or her, he or she shall discharge that person.
13 Appeal
(1) Any person against whom an order has been issued under section ten or twelve may within fifteen days after the
issue thereof, appeal against such order to the provincial or local division of the Supreme Court having jurisdiction.
(2) On appeal such division may make such order in the matter as it may deem fit.
(3) Any person who has lodged an appeal in terms of subsection (1) may at any time before such appeal has been
disposed of, apply to the magistrate who issued the order in terms of section 10 or 12 to be released on bail on condition
that such person deposits with the clerk of court, or with a member of the Department of Correctional Services, or with any
police official at the place where such person is in custody, the sum of money determined by the magistrate.
(4) If the magistrate orders that the applicant be released on bail in terms of subsection (3), the provisions of sections
66, 67, 68 and 307 (3), (4) and (5) of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall mutatis mutandis apply to
bail so granted, and any reference in those sections to-
(a) the prosecutor who may act under those sections, shall be deemed to be a reference to such person who may
appear at an enquiry held under this Act;
(b) the accused, shall be deemed to be a reference to the person released on bail under subsection (3);
(c) the court, shall be deemed to be a reference to the magistrate who released such person on bail; and
(d) the trial or sentence, shall be deemed to be a reference to the magistrate's order under section 10 or 12.
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Appendix H
Quickfinder Bail application in terms of s 60(1)
1 Approach the appropriate prosecutor and ascertain the state's attitude towards bail (and, if bail was to be opposed,
the specific grounds of opposition).
2 If the state intends opposing bail, take instructions from the client to launch the bail application. (Obtain cover for your
fees before launching the bail application as fees are notoriously difficult to extract afterwards in bail matters.)
3 Take notes of the client's instructions regarding:
s60(4)(a): paras 8.11, 8.12
Is there a likelihood that his release will endanger anyone?
(The Act deals with the likelihood (ie probability) but it is prudent to examine even a possibility in order to prepare for
the evidence which the state may present. If the possibility exists, explore it vigorously.)
• Look into his past: does he have a history of violence at school or in the workplace or at home?
• Does he have a criminal record relating to crimes of violence?
• If he does, examine the frequency and age of those previous convictions and focus on the length of any 'clean'
period immediately before the alleged commission of the offence for which he has been arrested.
Is there a likelihood that he may commit Schedule 1 offences while on bail?
Look at his criminal record: does he have a history of committing crime (other than petty offences)? Go through
Schedule 1.
• Go through s 60(5) item by item.
s 60(4)(b): paras 8.13, 8.14

Is there a likelihood that if released he will abscond?
Does he have a track record of being previously on bail? For what period was he on bail? Did he comply with his bail
conditions? (This is a crucially important factor in the client's favour as the past helps the court to project the future.)
Page 348
• Examine his roots in the province and especially in the area of the court's jurisdiction: Does he regard the area
as his home?
• Does he have a fixed abode? (Home ownership is a bonus, but not a necessity in a country where those who
most frequently brush with the law are mostly of humble financial standing.)
• For how long has he been at his current address (and before that, how stable was his residency)?
• Are his family and dependents and friends all resident within the said area?
• Is he employed?
• If so, for how long has he been in his current employment, and before that, for how long has he been steadily
employed? Contact his employer and ascertain whether his employment will continue if bail is granted, and
importantly, whether he would lose his job if he remains in custody.
• Does he intend pleading not guilty to the charge? (This is not essential, however, as even those who plead guilty
may be granted bail.)
• Does he have a defence to the charge? (It is rarely wise to disclose the defence or to dwell on it during the
application, save perhaps when the bail application is to be run on the basis of the probability of an acquittal at
trial.)
• Is he confident of being acquitted at trial? (In which event, the incentive to abscond is materially minimised.)
Go through s 60(6) item by item.
s60(4)(c): paras 9.1, 9.2

Is there a likelihood that if released he will interfere with witnesses or real evidence?
• A track record of exemplary behaviour while previously on bail will be a powerful factor in the accused's favour.
• Has he attempted, directly or indirectly, to contact known potential witnesses after the alleged commission of the
offence for which he has been arrested? If so, why?
• Has he attempted to do so after his arrest? If so, why?
• Is he able, and can he offer, to geographically distance himself from potential witnesses until they have testified?
s60(4)(d): para 9.3

Is there a likelihood that if released he will undermine the bail or justice systems?
• Again, a track record established while on bail previously may be of great advantage to the accused.
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• It is compulsory to disclose previous convictions, outstanding cases, and outstanding warrants of arrest (s
60(11B)(a) and (b)). Go right back into his past and attempt to present a full picture to the court: any
discrepancies may count against him when this sub-section is considered by the court.
s60(4)(e): para 9.4
Are the facts or circumstances of the case exceptional?
• If not, this sub-section will not come into play. (Read Dlamini 1999 (2) SACR 51 (CC) para [57].)
Will his release probably lead to public disorder?
• If not, this sub-section will not apply. (Read Mohammed 1999 (2) SACR 507 (C).)
• NB: The onus of proving affirmative answers to the two questions posed rests on the state. (Dlamini para [57].)
• Go through s 60(8A) item by item.
4 Canvass with the client, and where necessary investigate through enquiries from the prosecutor and examination of
the J15 (court's handwritten record of postponements etc), each item of s 60(9) para 9.5
5 Canvass with the client, and decide:
(a) Whether witnesses should be called and/or documentary evidence produced on his behalf;
(b) Whether he should testify at all;
(c) If it is decided to present his evidence, whether he should testify viva voce and submit to cross-examination; or
(d) Whether he should testify on affidavit. (This may be the appropriate choice in many cases, but may at times be
a risk as it will be seen as an attempt to avoid cross-examination.)
6 NB: Warn the client that the record of the bail proceedings forms part of the record of the trial and may accordingly
be held against him (s 60(11B)(c)). In the light of that fact, canvass the issue of testifying on the merits of the charge
and/or answering questions relating thereto (bearing in mind the disadvantage the client has of not knowing the
nature and extent of the evidence in possession of the state), and the risk of self-incrimination. Do not underestimate
this risk.
The bail application is only a battle, while the trial is the war; so quard against jeopardising the accused's trial
prospects for the short-term gain of obtaining bail.
7 Canvass with the client and/or his family their ability to afford bail, and the amount they can afford; alternatively,
whether security for bail can be posted (this, however, may be a time-consuming exercise involving the State Attorney
drawing up extensive contracts, especially if security in the form of property is involved).
Page 350
8 Arrange a date with the prosecutor for the hearing of the bail application. Be alert to the dilatory practice of
unprepared prosecutors and lazy courts of postponing the bail application as a matter of course, even where it is not
necessary to do so. (Read para 7.5 on page 69 of this book.)
9 Although not many prosecutors seem amenable to revealing the contents of their docket, it is advisable that insight
into the docket be requested and if denied, that this fact be recorded.
10 When preparing, consider where the onus lies: in a s 60(1) application it rests on the state. Thus, the state will have
the duty to begin. In terms of case law a reversal of the duty to begin may not be implemented, not even by
agreement.
11 During cross-examination by the state, be vigilant: questions are often asked regarding the merits, even if the client
has elected not to answer. Such questions may often be veiled and appear innocuous. Your duty is to get to your feet
each time and record 'I advise my client not to answer', question after question.
12 If bail is granted, you as attorney should assist the family to effect payment by requesting the court orderly to take
the J15 paperwork to the office of the clerk of the court and/or the cashier's office. You are entitled to take cession of
the bail receipt and may assist in the actual payment of bail. If you are counsel, you may assist administratively if you
wish but you may not be in any way involved with the actual payment of bail or taking the receipt as security for your
fee.
13 If bail is refused, or if the amount set is excessive, you must advise your client of the appeal options and take
instructions in that regard. Remember that you do not require leave to appeal against either refusal or excessive bail
Page 351
Appendix I
Quickfinder Bail application in terms of s 60(11)(a) (Schedule 6)
establish whether the state regards the application as one falling within Schedule 5 or 6, as well as the specific
grounds of opposition).
2 If the state intends opposing bail, take instructions to launch the bail application.
3 If the prosecutor intends opposing on the basis of s 60(11)(a), ie Schedule 6, be aware and make the client aware
that the onus rests on the client to prove on a balance of probabilities:
(a) That circumstances exist which permit his release in the interests of justice; and
(b) That such circumstances are exceptional.
NB: This involves having to prove a negative, ie that the accused is unlikely to realise any of the risks contemplated by
s 60(4)(a)-(d).
4 NB: Unless the prosecutor produces a certificate in terms of s 60(11A) indicating that the matter is subject to
Schedule 6, the status of the bail application as being one subject to Schedule 6 may only be established by reference
to the charge sheet and not through evidence. (Read S v Botha 2002 (2) SACR 222 (SCA) para [16].) The charge
sheet should therefore be scrutinised and compared with Schedule 6. Thus, eg, if the charge is Murder, it will not be
subject to Schedule 6 unless the charge sheet alleges that the act was planned or premeditated, etc; and on a charge
of Robbery Schedule 6 will only apply if the act involved the use of a firearm or the infliction of grievous bodily harm, or
was committed in respect of the taking of a motor vehicle.
5 NB: If the charge has not been framed, and the charge sheet is a mere uncompleted pro forma, the state will not be
able to argue that the application is subject to Schedule 6 unless it produces a certificate in terms of s 60(11A)(c)
declaring the matter to be a Schedule 6 one (which is extremely rarely done).
s 60(4)(a): paras 8.11, 8.12
(The Act deals with likelihood, but it is prudent to examine even a possibility in order to prepare for the evidence which
the state may present. If the possibility exists, explore it vigorously.)
Page 352
• Look into his past: does he have a propensity for violence, such as a history of violence at school or in the
workplace or at home?
Is there a likelihood that he may commit Schedule 1 offences while on bail?
• Look at his criminal record: does he have a history of committing crime (other than petty offences). Go through
Schedule 1.
s 60(4)(b): paras 8.13, 8.14

• Does he have a track record of being previously on bail? For what period was he on bail? Did he comply with his
bail conditions? (This is a crucially important factor in the client's favour as the past helps the court to project
the future.)
• Examine his roots in the province and especially in the area of the court's jurisdiction: does he regard the area as
his home?
• Is he employed?
trial.)
Page 353
• Is he confident of being acquitted at trial? (In which event the incentive to abscond is materially minimised.)
s60(4)(c): paras 9.1, 9.2
s60(4)(d): para 9.3

s60(4)(e): para 9.4

Will his release probably lead to public disorder?
• NB: The onus of proving affirmative answers to the two questions posed rests on the state. (Dlamini para
[57].)
7 Canvass with the client, and where necessary investigate through enquiries from the prosecutor and an examination of
the J15 (handwritten record of postponements etc), each item of s 60(9) para 9.5
Page 354
8 NB: Be aware that the onus can only be discharged if the client 'adduces evidence'. That does not mean that he is
compelled to testify: he may discharge the onus by leading the evidence of other witnesses, such as family members,
doctors, alibi witnesses, etc, and by submitting affidavits instead of oral evidence.
(a) Whether (and which) witnesses should be called and/or documentary evidence produced on his behalf;
(c) If it is decided to adduce his evidence, whether he should testify viva voce and submit to cross-examination; or
p (d) Whether he should testify on affidavit. (This may be the appropriate choice in many cases, but may at
times be a risk as it will be seen as an attempt to avoid cross-examination.)
10 Warn the client that the record of the bail proceedings forms part of the record of the trial and may accordingly be
held against him (s 60(11B)(c)). In the light of that fact, canvass the issue of testifying on the merits of the charge
nature and extent of the evidence in possession of the state). Do not underestimate this risk. The bail application is
only a battle, while the trial is the war; so guard against jeopardising the accused's trial prospects for the short-term
gain of obtaining bail.
11 Canvass with the client and/or his family their ability to afford bail, and the amount; alternatively, whether security for
bail can be posted (this, however, may be a time-consuming exercise involving the State Attorney drawing up
extensive contracts, especially if security in the form of property is involved).
14 In preparing, consider that the onus lies on your client: the rule is that the bearer of the onus must begin, which
means that the client's evidence (or the evidence of his witnesses, or an affidavit on his behalf) needs to be led first —
before he has heard the state's case on bail. In law a reversal of the duty to begin may not be implemented, not even
by agreement.
15 On the day of the hearing (it is usually not practical to do so earlier because of the unavailability of the docket at
court), be sure to obtain a copy of the charge sheet.
Page 355
16 After the evidence on behalf of the client and the state has been led, be alert to the possibility that evidence was
disclosed during the state's case of which your client would have been unaware, and that you may well succeed in an
application to lead evidence in rebuttal.
17 NB: Be mindful, from start to finish, of the fact that there is no need for proof of eg terminal illness or utter financial
and other ruin: the cumulative effect of the ordinary circumstances (s 60(4)-(9)) may constitute exceptional
circumstances. (Read C 1998 (2) SACR 721 (C) 724e, 725c; Dlamini 1999 (2) SACR 51 (CC) para [76].)
has elected not to answer. Such questions may often be veiled and appear innocuous. Your duty is to get to your feet
each time and record 'I advise my client not to answer', question after question.
the J15 paperwork to the office of the clerk of the court and/or the cashier's office. You are entitled to take cession of
the bail receipt and may assist in the actual payment of bail. If you are counsel, you may assist administratively if you
wish but you may not be in any way involved with the actual payment of bail or taking the receipt as security for your
fee.
instructions in that regard. Remember that you do not require leave to appeal against either refusal or excessive bail.
Page 356
Appendix J
Quickfinder Bail application in terms of s 60(11)(b) (Schedule5)
establish whether the state regards the application as one falling within Schedule 5 or 6, as well as the specific
grounds of opposition).
2 If the state intends opposing bail, take instructions to launch the bail application.
3 If the prosecutor intends opposing on the basis of s 60(11)(b), ie Schedule 5, be aware and make the client aware
that the onus rests on the client to prove on a balance of probabilities that circumstances exist which permit his
release in the interests of justice.
NB: This involves having to prove a negative, ie that the accused is unlikely to realise any of the risks contemplated by
s 60(4)(a)-(d).
4 NB: Unless the prosecutor produces a certificate in terms of s 60(11A) indicating that the matter is subject to
Schedule 5, the status of the bail application as being one subject to Schedule 5 may only be established by reference
to the charge sheet and not through evidence. (Read S v Botha 2002 (2) SACR 222 (SCA) para [16].) The charge
sheet should therefore be scrutinised and compared with Schedule 5. Thus, eg, if the charge is Attempted Murder, it
will not be subject to Schedule 5 unless the charge sheet alleges that the act involved the infliction of grievous bodily
harm.
5 NB: If the charge has not been framed, and the charge sheet is a mere uncompleted pro forma, the state will not be
able to argue that the application is subject to Schedule 5 unless it produces a certificate in terms of s 60(11A)(c)
declaring the matter to be a Schedule 5 one (which is extremely rarely done).
s 60(4)(a): paras 8.11, 8.12
• (The Act deals with likelihood, but it is prudent to examine even a possibility in order to prepare for the evidence
which the state may present. If the possibility exists, explore it vigorously.)
• Look into his past: does he have a propensity for violence, such as a history of violence at school or in the
workplace or at home?
Page 357
• Is there a likelihood that he may commit Schedule 1 offences while on bail?
• Look at his criminal record: does he have a history of committing crime (other than petty offences)? Go through
Schedule 1.
s60(4)(b): paras 8.13, 8.14

• Does he have a track record of being previously on bail? For what period was he on bail? Did he comply with his
bail conditions? (This is a crucially important factor in the client's favour as the past helps the court to project
the future.)
• Examine his roots in the province and especially in the area of the court's jurisdiction: does he regard the area as
his home?
• Is he employed?
trial.)
• Is he confident of being acquitted at trial? (In which event the incentive to abscond is materially minimised.)
Page 358
s60(4)(c): paras 9.1, 9.2

s60(4)(d): para 9.3

s60(4)(e): para 9.4

• Will his release probably lead to public disorder?
• NB: The onus of proving affirmative answers to the two questions posed rests on the state. (Dlamini para
[57].)
7 Canvass with the client, and where necessary investigate through enquiries from the prosecutor and an examination of
the J15 (handwritten record of postponements etc), each item of s 60(9). para 9.5
8 NB: Be aware that the onus can only be discharged if the client 'adduces evidence'. That does not mean that he is
compelled to testify: he may discharge the onus by leading the evidence of other witnesses, such as family members,
doctors, alibi witnesses, etc, and by submitting affidavits instead of oral evidence.
Page 359

(a) Whether (and which) witnesses should be called and/or documentary evidence produced on his behalf;
(c) If it is decided to adduce his evidence, whether he should testify viva voce and submit to cross-examination; or
(d) Whether he should testify on affidavit. (This may be the appropriate choice in many cases, but may at times be a
risk as it will be seen as an attempt to avoid cross-examination.)
10 Warn the client that the record of the bail proceedings forms part of the record of the trial and may accordingly be
held against him (s 60(11B)(c)). In the light of that fact, canvass the issue of testifying on the merits of the charge
nature and extent of the evidence in possession of the state). This risk must not be underestimated. The bail
application is only a battle, while the trial is the war; so guard against jeopardising the accused's trial prospects for the
short-term gain of obtaining bail.
11 Canvass with the client and/or his family their ability to afford bail, and the amount; alternatively, whether security for
bail can be posted (this, however, may be a time-consuming exercise involving the State Attorney drawing up
extensive contracts, especially if security in the form of property is involved).
14 In preparing, consider that the onus lies on your client: the rule is that the bearer of the onus must begin, which
means that the client's evidence (or the evidence of his witnesses, or an affidavit on his behalf) needs to be led first —
before he has heard the state's case on bail. In law a reversal of the duty to begin may not be implemented, not even
by agreement.
15 On the day of the hearing (it is usually not practical to do so earlier because of the unavailability of the docket at
court), be sure to obtain a copy of the charge sheet.
16 After the evidence on behalf of the client and the state has been led, be alert to the possibility that evidence was
disclosed during the state's case of which your client would have been unaware, and that you may well succeed in an
application to lead evidence in rebuttal.
has elected not to answer.
Page 360
Such questions may often be veiled and appear innocuous. Your duty is to get to your feet each time and record 'I
advise my client not to answer', question after question.
the J15 to the office of the clerk of the court and/or the cashier's office. You are entitled to take cession of the bail
receipt and may assist in the actual payment of bail. If you are counsel, you may assist administratively if you wish but
you may not be in any way involved with the actual payment of bail or taking the receipt as security for your fee.
instructions in that regard. Remember that you do not require leave to appeal against either refusal or excessive bail.
Page 361
Appendix K
Quickfinder Notice of appeal in terms of s 65
IN THE MAGISTRATES COURT FOR THE DISTRICT OF BELLVILLE

HELD AT BELLVILLE
Case No.:
In the matter betw een:
THE STATE
and
DOMENICO SCARLATTI ACCUSED
Notice of appeal
Kindly take notice that the abovenamed Accused hereby notes an appeal to the High Court of South Africa (Western Cape
High Court, Cape Town) against the refusal of bail by Magistrate Mr. G.F. Handel on 16 November 2012.
Kindly take notice further that the grounds of appeal are as follows:
1. The Magistrate erred in holding that exceptional circumstances in terms of sec. 60(11)(a) of Act 51 of 1977 were not
established, notwithstanding that—
(a) no evidence was presented which could indicate a likelihood that the Accused, if released on bail, would attempt
to evade standing trial;
(b) no evidence was presented which could indicate a likelihood that the Accused, if released on bail, would interfere
with witnesses or evidence;
(c) no evidence was presented which could indicate a likelihood that the Accused, if released on bail, would commit
Schedule 1 offences or would endanger the public;
(d) no evidence was presented which could indicate that the Accused's release on bail would disturb the public order
or undermine public peace or security.
2. The Magistrate erred in failing to hold that the aforementioned circumstances cumulatively amounted to exceptional
circumstances.
3. The Magistrate misdirected himself in failing to consider granting bail coupled with appropriate conditions.
Page 362
4. The Magistrate was accordingly wrong in refusing bail.

Dated at Bellville this day of November 2012
J.S. BACH ATTORNEY S
To:
The Clerk of the Court Attorneys for Accused
Magistrates Court Per:
Bellville Prelude Street
BELLVILLE
Page 363
Appendix L
Quickfinder Notice of appeal in terms of s 65
IN THE MAGISTRATES COURT FOR THE DISTRICT OF MALMESBURY

HELD AT ATLANTIS
Case no.:
THE STATE
and
GEORGE FRIDERIC HANDEL ACCUSED
Notice of appeal
KINDLY TAKE NOTICE that the abovenamed Accused hereby notes an appeal to the High Court of South Africa (Western
Cape High Court, Cape Town) against the refusal of bail by the learned Magistrate Mr E. Grieg in the above Honourable
Court on 23 June 2012.
KINDLY TAKE NOTICE FURTHER that the grounds of appeal are the following:
1.
The learned Magistrate erred in finding that the Accused was a possible flight risk.
2.
The learned Magistrate more particularly erred in:
(a) Failing to attach any or sufficient weight to the Accused's previous conduct whilst on bail, namely that he never
failed to comply with his obligation to attend court;
(b) Failing to attach sufficient weight to the Accused's evidence under oath that he resided at 268 Oratorio Rd, Cape
Town at all material times and that he was present at that address every day;
(c) Failing to attach any or sufficient weight to the evidence that the Accused and his wife owned the said property,
and that the Accused was responsible for paying the bond on it;
Page 364
(d) Failing to consider adequately or at all the uncontested evidence that the Accused's assets and emotional, family
and occupational ties are in the Western Cape and that he had no travel documents;
(e) Holding that the Accused, having instructed his attorney to write to the police in essence offering to make him
available for interviews, should have done more to ensure that such interviews took place, notwithstanding that
the police did not follow up the said offer; and moreover in making an adverse finding in this regard.
3.
The learned Magistrate erred in failing to find that the tenuous nature of the State's case was such that it provided no
incentive for the Accused to avoid standing trial, and that credence could be attached to the Accused's assertion that he
was confident of an acquittal at the trial.
4.
The learned Magistrate misdirected himself in holding that bail should be refused on the basis that 'a possibility exists that
the Accused is a flight risk'.
5.
The learned Magistrate accordingly erred in failing to hold that the 'ordinary circumstances', the Accused's clean record, the
absence of any pending cases or arrest warrants, the Accused's previous history of exemplary compliance with his bail
conditions, and the unlikelihood that the State will be able to prove its case against him, cumulatively constitutes exceptional
circumstances as envisaged by s. 60(11)(a) of Act 51 of 1977.
6.
The learned Magistrate misdirected himself in failing to consider granting bail coupled with appropriate conditions which could
have addressed any possible flight risk.
7.
The learned Magistrate was accordingly wrong in refusing bail.
DATED AT CAPE TOWN THIS 24th DAY OF JUNE 2012
J.S. BACH ATTORNEYS
Attorneys for the Accused
Per:
1st Floor
Fugue Plaza
Symphony Walk
MITCHELLS PLAIN
To:
The Clerk of the Court
Magistrates Court
ATLANTIS
Page 365
Appendix M
Quickfinder Bail pending petition and appeal to High Court
IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO.:
RICHARD WAGNER APPLICANT
and
THE STATE RESPONDENT
Notice of motion
KINDLY TAKE NOTICE THAT application will be made, on a date and at a time to be appointed by the Honourable the
Judge President, for an order in the following terms:
1. Dispensing with forms and service, and directing that this Application be heard as one of urgency in terms of Rule
6(12).
2. Granting the Applicant bail in an amount and upon such conditions as the Honourable Court may determine, pending
the final determination of his Petition for leave to appeal in terms of s 309C of the Criminal Procedure Act 51 of 1977
and any further appeals processes he may elect to pursue.
3. Directing that the aforementioned Petition be filed with the Registrar of this Court, and served upon the Respondent,
within ten (10) days of the grant of this order, failing which bail shall ipso facto lapse.
4. Granting the Applicant such further and/or alternative relief as the Honourable Court may deem meet.
KINDLY TAKE NOTICE FURTHER THAT the affidavits of the Applicant and of Georg Solti, annexed hereto, will be used in
support hereof, but that the Applicant reserves the right to adduce oral evidence at the hearing hereof.
Page 366
KINDLY PLACE THE MATTER ON THE URGENT ROLL FOR HEARING ACCORDINGLY
DATED AT CAPE TOWN THIS DAY OF FEBRUARY 2013
J.S. BACH INC.
Applicant's Attorneys
Per:
G. Solti
Allegro Chambers
35 Moderato Road
CAPE TOWN
TO:
The Registrar
High Court
CAPE TOWN
AND TO:
The DPP
Respondent
NPA Bldg
Buitengracht Street
CAPE TOWN
Page 367
Appendix N
Quickfinder: Bail pending petition and appeal to SCA
IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO.: 123/2012
WILLIAM BLAKE First Applicant
GEORGE WASHINGTON Second Applicant
and
THE STATE Respondent
Notice of motion
KINDLY TAKE NOTICE that application will be made on behalf of the abovenamed Applicants, on a date and at a time to
be arranged, for an order in the following terms:
1. Granting the Applicants bail in such amount and upon such conditions as the Honourable Court may deem
appropriate, pending determination of their application to the Supreme Court of Appeal for special leave to appeal
against the confirmation of their convictions by a Full Bench of the above Honourable Court, and if successful, pending
the final determination of any subsequent appeal.
2. Granting the Applicants such further and/or alternative relief as the Honourable Court may deem meet.
KINDLY TAKE NOTICE FURTHER that the Affidavits of the Applicants, annexed hereto, will be used in support hereof.
DATED AT CAPE TOWN THIS DAY OF OCTOBER 2012
J.S. BACH INC.
Applicant's Attorneys
Per:
Toccata Street
CAPE TOWN
Page 368
TO:
The Registrar
High Court
CAPE TOWN
AND TO:
THE DPP
Buitengracht Street
CAPE TOWN
Page xix
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Page xxv
Table of Cases
A
Abader WCHC case no A292/09, 23 July 2010 (unreported)
— 224, 225, 226, 228
Adams v The State an unreported decision of the Cape of Good Hope High Court, case A781/98 (6 October 1998)
— 98
Afrikaanse Pers Bpk v Neser 1948 (2) SA 295 (C)
— 195, 201, 203, 233
Alexander 1920 NPD 33
— 152
Alexander v Minister of Justice (SA 32/2008) [2010] NASC 2 (9 April 2010)
— 292
Alli Ahmed v Attorney-General 1921 TPD 461
— 140
Alli Ahmed v Attorney-General 1921 TPD 587
— 152
Arsenis 1942 SR 89
— 201
Attorney-General v Gilliland [1985] IR 643 646
— 291
Attorney-General v Van der Merwe and Bornman 1946 OPD 197 201
— 265
Ayob v Minister of Justice 1963 (1) SA 775 (T)
— 194
B
Badger [1843] 4 QB 468 472
— 27
Badger [1843] 4 QBD 68
— 182, 184, 190
Baron CPD case no A830/98, 22 October 1998 (unreported)
— 12
Barse v State of Maharashtra AIR 1983 SC 378
— 282
Beehari v Attorney-General, Natal 1956 (2) SA 598 (N)
— 4, 5, 6, 223, 230
Bell v Van Rensburg 1971 (3) SA 693 (C)
— 43
Bell v Wolfish 342 US 520 533
— 22
Bell v Wolfish 441 US 520 (1979)
— 29
Benjamin (1883) 3 EDL 337 338
— 16, 23
Birch v Johannesburg City Council 1949 (1) SA 231 (SWA)
— 209
Blackburn v Alabama 361 US 199 (1960) 206
— 259
Bloomberg 1946 (1) PH H21 (C)
— 232
Blunt v Park Lane Hotel Ltd [1942] 2 All ER 187 (CA)
— 122
Botha v Minister of Safety and Security; January v Minister of Safety and Security 2012 (1) SACR 305 (ECP)
— 264
Bothma v Els 2010 (1) SACR 184 (CC)
— 266
Brink v Commissioner of Police 1960 (3) SA 65 (T)
— 45, 109
Brits Town Council v Pienaar 1949 (1) SA 1018 (T)
— 201
Brown v Board of Education of Topeka 349 US 294
— 282
Page xxvi
C
C 1955 (1) PH H53 (C)
— 151
C 1955 (1) PH H93 (C)
— 143, 151, 173, 175
Carlson v Landon 342 US 524 (1952)
— 28
Carlson v Landon 342 US 524
— 34
Carmichele v Minister of Safety and Security 2002 (1) SACR 79 (CC)
— 10, 120
Cassim v Regional Magistrate, Pretoria 1962 (2) SA 440 (T)
— 187, 191, 194, 197, 198, 204
Centre for Child Law v Minister of Justice and Constitutional Develop-ment 2009 (2) SACR 477 (CC)
— 279
Chislett v Attorney-General, Natal 1966 (2) PH H300 (N)
— 172, 176
Chunguete v Minister of Home Affairs 1990 (2) SA 836 (W)
— 224
Chunilall v Attorney-General, Natal 1979 (1) SA 236 (D)
— 4, 5, 6
Chunilall v Attorney-General, Natal 1979 (1) SA 236 (N)
— 230
Coetzee v The State an unreported decision of the Cape of Good Hope High Court case A942/98 (26 November 1998
— 98
Colonial Govt v Swaab 3 HCG 4
— 189
Commissioner for Inland Revenue v Visser 1959 (1) SA 452 (A)
— 180
Consolidated Exploration and Finance Co v Musgrave [1900] 1 Ch 37
— 190
Cornelissen v Attorney-General 19 CTR 210
— 152
Council of Review, SADF v Mönnig 1992 (3) SA 482 (A)
— 7, 284
Crookes v Sibisi 2011 (1) SACR 23 (KZP)
— 266
D
Da Costa v The Magistrate, Windhoek 1983 (2) SA 732 (SWA)
— 9, 182, 183, 184, 187, 188
Dabner v SAR and H 1920 AD 583 598
— 42
De Jager v Attorney-General, Natal 1967 (4) SA 143 (D)
— 79, 81, 176, 198, 205, 245, 246, 248
De Reuck v DPP, Witwatersrand 2003 (2) SACR 445 (CC)
— 276
Democratic Alliance v President of the Republic of South Africa 2012 (1) SA 417 (SCA)
— 251
Desai 1953 (2) PH H192 (N)
— 81
Dinizulu 20 NLR 51
— 151
Director of Public Prosecutions, Eastern Cape, v Louw NO: In re S v Makinana 2004 (2) SACR 46 (E)
— 50
DPP, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA)
— 277
Dracopoulos v Minister of Justice 1910 CTR 831
— 140, 151
Du Toit v Adjunk-Prokureur-generaal, OVS 1956 (1) PH H89 (O)
— 140, 143, 173, 152
Page xxvii
Duncan t/a San Sales v Herbor Investments (Pty) Ltd 1974 (2) SA 214 (T)
— 194
Duncan v Minister of Law and Order 1986 (2) SA 805 (A)
— 262
E
Eichmann v Attorney-General of the Govt of Israel (1962) 136 ILR
— 286
Ellish en Andere v Prokureur-Generaal, WPA 1994 (2) SACR 579 (W)
— 35, 82, 83, 87, 89, 232
Ellish v Prokureur-Generaal, WPA 1994 (2) SACR 579 (T)
— 80
Ellish v Prokureur-Generaal, WPA 1994 (2) SACR 579, 1994 (4) SA 835 (W)
— 71
Ellish v Prokureur-Generaal, WPA 1994 (4) SA 835 (W)
— 83
Engelbrecht (41/918/2011 [2012] ZAGPJHC 38 (23 March 2012)
— 193
Erasmus 1959 (2) PH H172 (C)
— 206, 207
Estate Norton v Smerling 1936 OPD 44
— 109
Evans v Public Service Commission 1920 TPD 170 175
— 42
Ex parte Bassano 10 CTR 464
— 13
Ex parte Chetty 1933 EDL 319
— 145
Ex parte Estate Phillips 1958 (1) SA 803 (N)
— 187, 191, 193, 246
Ex parte Goldstein 1911 EDL 404
— 207
Ex parte Graham: In re United States of America v Graham 1987 (1) SA 368 (T)
— 4, 5, 289, 290, 292
Ex parte Hathorn 1960 (2) SA 767 (D)
— 109
Ex parte Huysamen 19 SC 393
— 174, 175
Ex parte Kadalie 1930 (1) PH H32 (E)
— 171, 176
Ex parte Nkete 1937 EDL 231
— 145
Ex parte Qutani 1946 EDL 173
— 145
Ex parte Rampi 1933 GWL 27
— 166
Ex parte Reckling 1920 CPD 567
— 4, 5, 290
Ex parte Taljaard 1942 OPD 66
— 146, 152
Ex parte Van Niekerk 1925 OPD 43
— 151, 216
Ex parte Van Wyk 1933 (1) PH H63 (GW)
— 141
F
F J Hawkes and Co Ltd v Nagel 1957 (3) SA 126 (W)
— 184
Francis CPD case no A981/98, 2 December 1998 (unreported)
— 18, 90, 101
Fripp v Gibbon 1913 AD 354 363
— 242
Froman v Robertson 1971 (1) SA 115 (A)
— 180
Fry v Attorney-General, Transvaal 1954 (3) SA 794 (W)
— 140, 146, 232
G
Gade v S [2007] 3 All SA 43 (NC)
— 147
Page xxviii
Garces v Fouche 1998 (2) SACR 451 (Nm)

— 15
Gericke 1913 EDL 65
— 166
Gillespie 1935 EDL 490
— 143, 145
Gillespie 1960 (1) PH H56 (W)
— 171, 198
Gillham 1967 (2) PH H298 (D)
— 146
Gosschalk v Rossouw 1966 (2) SA 476 (C)
— 257
Grobler v Attorney-General 1915 TPD 9
— 143
Groesbeeck 1969 (4) SA 455 (O)
— 143
H
Hafferjee 1932 NPD 518
— 10, 116, 145, 146, 171
Harksen v President of the RSA 2000 (1) SACR 300 (CC)
— 286
Harms v Attorney-General 1929 (2) PH H127 (N)
— 152
Harvard LR 1281 1298
— 282
Haynes v Washington 373 US 503 (1963)
— 121
Head v Wollaston and the Attorney-General 1927 TPD 19
— 5, 6
Heller v Attorney-General 1932 CPD 102
— 146
Hendricks CPD case no A714/98, 1 October 1998
— 100
Hendriks v The State an unreported decision of the Cape of Good Hope High Court, case A714/98 (1 October 1998)
— 98
Herman v Jeuchner [1885] 15 QBD 561
— 190
Highstead Entertainment (Pty) Ltd v Minister of Law and Order 1994 (1) SA 387 (C)
— 20
Hooper v Superintendent, Johannesburg Gaol 1958 (2) SA 157 (W)
— 201
Hoosain v Attorney-General, Cape (2) 1988 (4) SA 142 (C)
— 7
Hoosain v Attorney-General, Cape (2) 1988 (4) SA 142 (K)
— 5
Hunt v Roth 648 F 2d 1148 (1981)
— 29, 93
Hurley v Minister of Law and Order 1985 (4) SA 709 (D)
— 13, 55, 200, 254, 255, 256, 201
I
Isaacs v University of the Western Cape 1974 (2) SA 409 (C)
— 109
J
Jack v Vermeulen 1979 (1) SA 659 (C)
— 198, 245, 246, 247
Jager v Attorney-General, Natal 1967 (4) SA 143 (D)
— 79
January 1978 (2) PH H243 (E)
— 165
John Rampi v Attorney-General (1) 1933 GWL 11
— 232
Jooste v Botha 2000 (2) SA 199 (T)
— 157
K
Kader v Attorney-General 1946 CPD 838
— 175
Page xxix
Kaplan 1931 (1) PH H51 (T)

— 146
Kaspersen v R 1909 TS 639
— 216
Katofa v Administrator-General for SWA 1985 (4) SA 211 (SWA)
— 267
Katofa v Administrator-General for SWA 1986 (1) SA 800 (SWA)
— 267
Key v Attorney-General, Cape of Good Hope Provincial Division: 1996 (4) SA 187 (CC)
— 132
Khan 2003 (1) SACR 636 (T)
— 242
Khan v Attorney-General 1909 CTR 228
— 140
Knight v Van Tonder 1962 (3) SA 719 (R)
— 168, 175, 194
Konig v Attorney-General 1915 TPD 221
— 161
Kramer TPD case no 383/82, 26 August 1982 (unreported)
— 217
Kruger 1940 (2) PH F159 (O)
— 191, 204
Kruger Bros and Wasserman v Ruskin 1918 AD 63 65
— 242
Kuhn v Attorney-General 9 SC 54
— 189
L
Lamb v Munster [(1882), 10 QBD 110]
— 122
Lee JC 113/47 (C)
— 79
Leibman v Attorney-General 1950 (1) SA 607 (W)
— 65, 79, 140, 216
Leo CPD case no 297/84, 19 November 1985 (unreported)
— 212, 215, 216
Liebenberg 10 CTR 442
— 140
Limbada 1955 (2) PH H196 (N)
— 81
Linford v Fitzroy [1849] 13 QB 240
— 27
Liversidge v Anderson [1942] AC 206 (HL)
— 201
Lobel v Attorney-General 1956 (1) PH H10 (T)
— 138
Lobel v Claassen 1956 (1) SA 531 (W)
— 145
London Estates (Pty) Ltd v Nair 1957 (3) SA 591 (D)
— 201
Long (1883) 3 EDC 1
— 189
Long (1883) 3 EDC 16
— 184
M
Mönnig v Council of Review 1989 (4) SA 866 (C)
— 7, 283, 284
Mabuza 1996 (2) SACR 239 (T)
— 177, 198
MacDonald v Kumalo 1927 EDL 293
— 44
Macu v Du Toit 1982 (1) SA 272 (C)
— 209
Magano v District Magistrate, Johannesburg (1) 1994 (2) SACR 304 (W)
— 37, 80, 81, 86
Magano v District Magistrate, Johannesburg (1) 1994 (4) SA 169 (W)
— 35, 86
Magistrate, Stutterheim v Mashiya 2003 (2) SACR 106 (SCA)
— 71
Magmoed v Janse van Rensburg 1993 (1) SA 777 (A)
— 123, 127
Majali (41210/2010) [2011] ZAGPJHC 74, (19 July 2011)
— 70
Majikazana (559/09) [2010] ZASCA 29 (26 March 2010), unreported
— 136
Page xxx
Mamba 1966 (1) PH H183 (C)

— 13
Mapumulu v Pieterse 1962 (2) SA 198 (D)
— 180
Maqungu v Assistant Magistrate, Whittlesea 1977 (2) SA 359 (E)
— 9, 199, 245
Maserow v Attorney-General 1941 WLD 43
— 116
Maserow v Attorney-General 1941 WLD 43 47
— 145
Masoanganye v S 2012 (1) SACR 292 (SCA)
— 222, 245
Mbambo v Minister of Defence 2005 (2) SA 226 (T)
— 231
Mbele v Prokureur-generaal, Transvaal 1966 (2) PH H272 (T)
— 146
McCarthy 1906 TS 657
— 80
McCarthy 1906 TS 657 659
— 10
Mdhuli 1968 (2) PH H303
— 65
Meer v Attorney-General, Cape Province 1949 (1) PH H26 (C)
— 232
Metal and Allied Workers Union v Castell 1985 (2) SA 280 (D)
— 200, 255
Millard and Son (Pty) Ltd v Enzenhofer 1968 (1) SA 330 (T)
— 64
Minister of Justice v Bagattini 1975 (4) SA 252 (T)
— 289, 290
Minister of Law and Order v Dempsey 1988 (3) SA 19 (A)
— 262
Minister van Justisie v Jaffer 1995 (1) SACR 292 (A)
— 206
Minnies WCHC case no A288/08, 22 September 2009 (unreported)
— 224 225, 226
Miranda v Arizona 384 US 436 (1966)
— 125, 259
Mngemane v Attorney-General, Transvaal 1958 (2) SA 84 (W)
— 9, 165
Mooi (162/12) [2012] ZASCA 79 (30 May 2012)
— 105, 141
Mhongo DCLD case no CC 176/88 (unreported)
— 257
Murdock v Ellis 1956 (1) SA 528 (N)
— 171
Mvu v Minister of Safety and Security 2009 (2) SACR 291 (GSJ)
— 41
N
Naicker v Attorney-General 1962 (2) PH H190 (N)
— 146
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
— 135
Ndabeni v Minister of Law and Order 1984 (3) SA 500 (D)
— 201
Ndhlovu v Minister of Justice 1976 (4) SA 250 (N)
— 286
Nduli v Minister of Justice 1978 (1) SA 893 (A)
— 286
Ndwayana 1983 (1) PH H93 (E)
— 177
Ngqeleni 2005 (2) SACR 572 (TkH)
— 217
Ngwenya 1991 (2) SACR 520 (T)
— 48, 66
Nhlabathi v Adjunk-Prokureur-generaal, Transvaal 1978 (3) SA 620 (W)
— 19
Nortjé v Attorney-General, Cape 1995 (1) SACR 446 (C)
— 22
Novick v Minister of Law and Order 1993 (1) SACR 194 (W)
— 59
Ntuli 1959 (2) PH H294 (N)
— 146
Page xxxi
O
Oehl v Additional Magistrate, Bellville 2005 (2) SACR 14 (C)
— 104, 203, 204, 205
Okoye CPD case no A416/2000, 18 August 2000 (unreported)
— 94, 106
Osman v The Attorney-General, Transvaal 1988 (4) SA 1224 (CC); 1998 (11) BCLR 1362 (CC)
— 130
P
Paretti v United States (1997) 112 F 3d 1363
— 291
Phillips (1922) 128 LT 113
— 288
Phillips v Botha 1999 (1) SACR 1 (SCA)
— 265
Pillay v Krishna 1946 AD 946
— 64, 83, 167
Pillay v Regional Magistrate, Pretoria 1976 (4) SA 290 (T)
— 198, 245, 246, 247
Porter [1910] 1 KB 369
— 190
Potgieter 1955 (1) PH H31 (O)
— 118, 143, 167, 232
Prokureur-Generaal van die WPA v Van Heerden 1994 (2) SACR 469 (W)
— 35, 80, 83, 113
Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O)
— 11, 48, 55, 81, 83, 113
R
R v Abdroikov
— 54
R v Blumenthal 1924 TPD 358
— 4, 5, 287, 290
R v Booi 1932 CPD 398
— 181
R v Boyes [(1861), IB&S 311]
— 122
R v Bray (1983) 40 OR (2d) 766 (CA)
— 28
R v Bunting 1954 (2) SA 377 (C)
— 242
R v Conradie 1907 TS 455
— 38, 143, 165, 173, 175, 232
R v Deetlefs 1960 (1) SA 388 (GW)
— 58
R v Dhlumayo 1948 (2) SA 677 (A)
— 233
R v Dockrat 1959 (3) SA 61 (D)
— 146, 171
R v Du Bois (1985) 22 CCC (3d) 513 531
— 20
R v Du Plessis 1957 (4) SA 463 (W)
— 165, 189
R v Dunga 1934 AD 223
— 127
R v Fourie 1947 (2) SA 574 (O)
— 141, 146, 161, 175
R v Fourie 1948 (3) SA 548 (T)
— 152, 216, 219, 220
R v Gcora 1943 EDL 74
— 146, 152
R v Grigoriou 1953 (1) SA 479 (T)
— 81, 143, 152, 216
R v Innes 1925 CPD 58
— 4, 5
R v Karrim 1951 (4) SA 385 (N)
— 234
R v Khalpy 1958 (1) SA 291 (C)
— 110
Page xxxii
R v Kok 1927 NPD 267

— 113, 138, 140, 141, 143, 145, 146, 148, 176
R v Lee 1949 (1) SA 1134 (A)
— 4, 6
R v Lipschitz, R v Green 1947 (2) SA 931 (T)
— 242
R v Louw 1918 CPD 358
— 152
R v Lyons, supra
— 21
R v Mafika 1955 (1) SA 1 (W)
— 216
R v Mbalele 1946 (1) PH H63 (E)
— 146
R v McInnes 1946 WLD 386
— 205, 245
R v Milne and Erleigh (4) 1950 (4) SA 601 (W)
— 166, 216, 219
R v Milne and Erleigh (7) 1951 (1) SA 791 (A)
— 4, 6
R v Morales (1992) 77 CCC (3d) 91 (SCC)
— 28, 148, 156, 202
R v Morales [1992] 3 SCR 711
— 92
R v Mtatsala 1948 (2) SA 585 (E)
— 31, 65, 79, 81, 140, 145, 161
R v Mthembu 1961 (3) SA 468 (D)
— 4, 6, 219, 221
R v Ndlovu 1945 AD 369 381
— 64, 167
R v Ngedlane and Roux 1935 NPD 638
— 4, 6
R v Noor Mohamed [1949] AC 182 (PC)
— 118
R v Oakes (1986) 24 CCC (3d) 321 333
— 19
R v Omar 1930 CPD 79
— 140
R v Patel 1952 (1) SA 674 (T)
— 230
R v Pearson (1992) 77 CCC (3d) 124 (SCC)
— 19, 21, 23, 24, 28
R v Pearson [1992] 3 SCR 665
— 92
R v Perkins 1934 NPD 276
— 65, 140, 151
R v Phasoane 1933 TPD 405
— 145
R v Rose (1898) 18 Cox CC 717-719
— 16
R v S 1954 (3) SA 522 (A)
— 118
R v Second 1970 (1) PH H5 (RA)
— 109
R v Skorpen 1950 (2) SA 383 (N)
— 242
R v Sparks [1964] 1 All ER 727 (CA)
— 121
R v Spilsbury [1898] 2 QBD 615 620
— 291
R v Spilsbury [1898] 2 QBD 615
— 287
R v Venter 1907 TS 910
— 169
R v Vermeulen 1958 (2) SA 326 (T)
— 165, 183
R v Vlotman 1911 AD 632
— 214
R v Wessels 1935 AD 8
— 4, 6
R v Zackey 1945 AD 505 511
— 109
Rex v Fourie 1948 (3) SA 548 (T)
— 152, 216, 219, 220
Riddoch v Attorney-General, Transvaal 1965 (1) SA 817 (W)
— 166
Rolobile 1913 EDL 282
— 175
Rossouw v Sachs 1964 (2) SA 551 (A)
— 257
Page xxxiii
S
S v Abrahams 2001 (2) SACR 358 (C)
— 268
S v Absalom 1989 (3) SA 154 (A)
— 224, 237
S v Acheson 1991 (2) SA 805 (Nm)
— 12, 19, 58, 73, 74, 75, 78, 154, 173, 269
S v Adams 1993 (1) SACR 611 (C)
— 123
S v Agnew 1996 (2) SACR 535 (C)
— 46
S v Aimes 1998 (1) SACR 343 (C)
— 128
S v Anderson 1991 (1) SACR 525 (C)
— 220, 221, 222
S v Augustine 1980 (1) SA 503 (A)
— 216
S v Baker 1965 (1) SA 821 (W)
— 144, 148, 161, 232
S v Baleka and Others 1986 (1) SA 361 (T)
— 4, 5, 55, 195, 234, 235
S v Balkwell 2006 (1) SACR 60 (N)
— 124
S v Barber 1979 (4) SA 218 (D)
— 120, 143, 145, 146, 233
S v Barnard en 'n Ander 1985 (A) SA 439 (W)
— 57, 58
S v Basson 2007 (1) SACR 566 (CC)
— 68, 132
S v Beer 1986 (2) SA 307 (SE)
— 219
S v Bennett 1976 (3) SA 652 (C)
— 116, 143, 145, 161, 170, 171, 172, 176
S v Berg 1962 (4) SA 111 (O)
— 118, 143, 144
S v Bhengu 1995 (3) BCLR 394 (D)
— 232
S v Block 2011 (1) SACR 622 (NCK)
— 70
S v Boorman 1981 (2) SA 852 (C)
— 195
S v Botha & Others 1995 (2) SACR 605 (W)
— 125
S v Botha 1995 (2) SACR 605 (W)
— 123, 124, 127, 128, 129, 130, 131
S v Botha 2002 (1) SACR 222 (SCA)
— 95, 96, 102, 103, 106, 237, 238, 240, 351, 356
S v Branco 2002 (1) SACR 531 (W)
— 163
S v Brand 1995 (1) SACR 169 (W)
— 222
S v Brandt 2006 (1) SACR 311 (SCA)
— 277
S v Bruinders 2012 (1) SACR 25 (WCC)
— 136
S v Bruintjies 2003 (2) SACR 575 (SCA)
— 217, 220, 221, 222
S v Budlender and Another 1973 (1) SA 264 (C)
— 140, 148, 152, 164, 170, 171, 174,176
S v C 1998 (2) SACR 721 (C)
— 98, 99, 100, 101, 139
S v Casker 1971 (4) SA 504 (N)
— 9, 58, 146, 168, 170, 171, 187, 198, 205, 245
S v Cele 1985 (4) SA 767 (A)
— 125
S v Chavulla and Others 1999 (1) SACR 39 (C)
— 129, 130, 132, 251
S v Cloete 1999 (2) SACR 137 (C)
— 130 131, 132
S v Cronjé 1983 (3) SA 739 (W)
— 169, 187
S v Davidson 1964 (1) SA 192 (T)
— 242
S v De Abreu 1980 (4) SA 94 (W)
— 120, 142, 143, 172, 219, 220, 233
Page xxxiv
S v De Kock 1995 (1) SACR 299 (T)

— 111, 154
S v De Villiers 1996 (2) SACR 122 (T)
— 58, 76, 77
S v De Villiers en 'n Ander 1999 (1) SACR 297 (O)
— 221
S v De Vries 1989 (1) SA 228 (A)
— 127
S v Dhlamini 1997 (1) SACR 54 (W)
— 148, 241
S v Dial 2006 (1) SACR 395 (E)
— 279
S v Dlamini 1999 (2) SACR 51 (CC)
— 37, 67, 68, 71, 86, 88, 89, 90, 91, 92, 97, 98, 100, 130, 149, 151, 153, 155, 251, 261, 263, 264, 266, 276
S v Dlamini 1999 (2) SACR 51 (CC), 1999 (4) SA 623 (CC)
— 17, 23, 111
S v Dlamini 1999 (4) SA 623 (CC)
— 3
S v Dlamini and Another 1998 (5) BCLR 552 (N)
— 129
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR
771), held at 90 (SACR) (670) (SA)
— 159, 221
S v Essack 1965 (2) SA 161 (D)
— 10, 23, 31, 108, 144, 161
S v Fourie 1973 (1) SA 100 (D)
— 25, 116, 118, 138, 139
S v Francis 1999 (1) SACR 650 (SCA)
— 158
S v Gasa and Others 1998 (1) SACR 446 (D)
— 46
S v Geritis 1966 (1) SA 753 (W)
— 13, 74, 75
S v Gqozo 1994 (1) BCLR 1 (Ck)
— 123
S v Green 2006 (1) SACR 603 (SCA)
— 69
S v Gwala 1969 (2) SA 227 (N)
— 196
S v H 1999 (1) SACR 72 (W)
— 110, 138, 139, 152, 164, 166, 233, 246
S v Hartman 1968 (1) SA 278 (T)
— 141
S v Hassim 1972 (1) SA 200 (N)
— 145
S v Hattingh 1992 (2) SACR 466 (N)
— 224
S v Hertzog 1970 (2) SA 578 (T)
— 109
S v Heyman 1966 (4) SA 598 (A)
— 257, 286
S v Hitschmann 2007 (2) SACR 110 (ZH)
— 75
S v Hlongwa 1979 (4) SA 112 (D)
— 81, 117, 119, 143, 145, 151 152
S v Hlongwane 1982 (4) SA 321 (N)
— 65
S v Hlongwane 1989 (4) SA 79 (T)
— 4, 51, 224, 228, 229, 289, 290
S v Ho 1979 (3) SA 734 (W)
— 110, 138, 140, 152, 164, 233, 246
S v Hudson 1980 (4) SA 145 (D)
— 108, 142, 143
S v Hudson 1996 (1) SACR 431 (W)
— 220, 221, 222
S v Human 1990 (2) SACR 155 (NC)
— 224
S v IO 2010 (1) SACR 342 (C)
— 280
S v Jacobs 2011 (1) SACR 490 (ECP)
— 271, 273
S v Jakada 1990 (2) SACR 34 (Ck)
— 211
S v Jeniker & Others (2) 1993 (2) SACR 464 (C)
— 128
Page xxxv
S v Jonas 1998 (2) SACR 673 (SE)

— 97, 101
S v Jonas and Others 1998 (2) SACR 677 (SE)
— 102
S v Joone 1973 (1) SA 841 (C)
— 11, 44, 116, 161
S v Josephs 2001 (1) SACR 659 (C)
— 68, 102
S v Kaplan 1967 (1) SA 634 (T)
— 4, 5, 230
S v Kathrada 1961 (3) SA 593 (T)
— 13, 140, 144, 233
S v Kearney 1964 (2) SA 495 (A)
— 121
S v Kets 1977 (1) SA 444 (C)
— 246
S v Kock 2003 (2) SACR 5 (SCA)
— 147, 241
S v Kramer 1983 (2) PH H120 (A)
— 168
S v Kuthumela 1984 (4) SA 5 (T)
— 222
S v Le Roux en Andere 1995 (2) SACR 613 (W)
— 58, 77
S v Lebone 1965 (2) SA 837 (A)
— 121
S v Lenong 1973 (2) SA 81 (O)
— 246
S v Letaoana [1998] 1 All SA 107 (W)
— 24, 37
S v Letaoana [1998] 1 All SA 114 (W)
— 87
S v Lulane 1976 (2) SA 204 (N)
— 141, 161
S v Lwane 1966 (2) SA 433 (A)
— 121, 123
S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC)
— 157
S v Mabapa 2003 (2) SACR 579 (T)
— 221
S v Mabena and Another 2007 (1) SACR 482 (SCA)
— 137
S v Magoda 1984 (4) SA 462 (C)
— 13
S v Maharaj and Another 1976 (3) SA 205 (D)
— 81, 113, 116, 118, 141, 176
S v Maki and Others 1994 (2) SACR 630 (E)
— 113, 114, 115, 116
S v Makoula 1978 (4) SA 763 (SWA)
— 195, 201, 203, 233
S v Makwanyane 1995 (3) SA 391 (CC)
— 91
S v Malcolm 1999 (1) SACR 49 (SE)
— 111
S v Maliwa 1986 (3) SA 721 (W)
— 239
S v Maluleke 2002 (1) SACR 260 (T)
— 268
S v Mark 2001 (1) SACR 572 (C)
— 267, 268
S v Marx and Another 1996 (2) SACR 140 (W)
— 46
S v Maseko and Others 2000 (1) SACR 251 (E)
— 236
S v Mataboge (1) 1991 (1) SACR 539 (B)
— 81
S v Mathebula 2010 (1) SACR 55 (SCA)
— 103, 105
S v Mauk 1999 (2) SACR 479 (W)
— 69, 102
S v Mazibuko and Others 2010 (1) SACR 433 (KZP)
— 100, 102
S v Mbatha; S v Prinsloo 1996 (1) SACR 371 (CC)
— 33
S v Mbele and Another 1996 (1) SACR 212 (W)
— 11, 37, 65, 80, 81, 82, 83, 84, 86, 87, 92, 113, 154, 233, 267
S v Mbolombo 1995 (5) BCLR 614 (C)
— 22
Page xxxvi
S v McKenzie 1967 (1) SA 62 (E)

— 242
S v Melani and Others 1996 (1) SACR 335 (E)
— 46
S v Mhlawli and Others 1963 (3) SA 795 (C)
— 10, 25, 31, 140
S v Michau 10 CTR 45
— 171, 173
S v Mohamed 1977 (2) SA 531 (A)
— 164, 165, 172, 232, 233, 237, 238, 239, 240, 241, 244
S v Mohammed 1999 (2) SACR 507 (C)
— 68, 73, 77, 97, 98, 151, 236, 246
S v Monyane 2001 (1) SACR 115 (T)
— 46
S v Mpetha and Others CPD case no 3/81, 30 May 1985 (unreported)
— 211, 215
S v Mpofana 1998 (1) SACR 40 (Tk)
— 73, 77, 241
S v Mqubasi 1993 (1) SACR 198 (SE)
— 123
S v Mthembu 1961 (3) SA 468 (N)
— 216
S v Murdock v Ellis 1956 (1) SA 528 (N)
— 171
S v Mushimba 1977 (2) SA 829 (A)
— 123
S v Mvu v Minister of Safety and Security 2009 (2) SACR 291 (GSJ)
— 41
S v Mzatho and Others 2007 (2) SACR 309 (T)
— 50
S v Naidoo 1996 (2) SACR 250 (W)
— 220, 222
S v Nangutuuala 1973 (4) SA 640 (SWA)
— 139
S v Ndjadayi 1995 (2) SACR 583 (E)
— 113, 114, 115, 220, 237, 240
S v Nel 1974 (2) SA 445 (NC)
— 45
S v Nel 2002 (1) SACR 425 (T)
— 224, 229
S v Nichas 1977 (1) SA 257 (C)
— 13, 64, 65, 81, 108, 110, 140, 142, 143, 151, 161
S v Nkosi and Andere 1987 (1) SA 581 (T)
— 57
S v Nomzaza 1996 (2) SACR 14 (A)
— 113, 114 122, 123, 126
S v Nongila 1970 (3) SA 97 (E)
— 109
S v Nyengane 1996 (2) SACR 520 (E)
— 123
S v O'Neill 1967 (4) SA 84 (SWA)
— 209
S v Patel 1970 (3) SA 565 (W)
— 118, 138, 151, 152
S v Perumal 1967 (3) SA 725 (D)
— 216
S v Petersen 2008 (2) SACR 355 (C)
— 77, 157, 173
S v Pienaar 1992 (1) SACR 178 (W)
— 103, 111
S v Potgieter 2000 (1) SACR 578 (W)
— 225, 226, 228, 236
S v Price 1973 (2) PH H92 (C)
— 108, 140
S v Qhaka 1961 (4) SA 170 (E)
— 232
S v Radebe 1968 (4) SA 410 (A)
— 121
S v Ramgobin (1) 1985 (3) SA 587 (N)
— 25, 55, 106, 235, 252, 253
S v Ramgobin (2) 1985 (4) SA 130 (N)
— 25, 172, 252
S v Ramgobin 1985 (3) SA 587 (N); 1985 (4) SA 130 (N)
— 148
S v Ramokhosi 1999 (1) SACR 497 (A)
— 114, 234
Page xxxvii
S v Rawat 1999 (2) SACR 398 (W)

— 221
S v Rens 1996 (2) BCLR 155 (CC)
— 232
S v Richardson 1992 (2) SACR 169 (E)
— 220
S v Rudolph 2010 (1) SACR 262 (SCA) para [16]
— 106
S v Russell 1978 (1) SA 223 (C)
— 148, 169, 171, 174
S v S (423/11) [2011] ZASCA (29 November 2011)
— 218
S v Savoi 2012 (1) SACR 438 (SCA)
— 176
S v Schietekat 1999 (1) SACR 100 (C)
— 18, 150
S v Scott-Crossley 2007 (2) SACR 470 (SCA)
— 217, 220, 221
S v Sefatsa v Attorney-General, Transvaal 1989 (1) SA 821 (A)
— 224
S v Sejaphale 2000 (1) SACR 603 (T)
— 124
S v Shabalala 1986 (4) SA 734 (A)
— 125
S v Shaban 1965 (4) SA 646 (W)
— 143
S v Shaw 1922 TPD 203
— 138
S v Shezi 1996 (1) SACR 715 (T)
— 84, 85, 92
S v Sibuya 1979 (3) SA 192 (T)
— 191, 192
S v Sisulu 1963 (2) SA 596 (W)
— 216
S v Sithebe 1992 (1) SACR 347 (A)
— 125, 127
S v Sithole 1980 (4) SA 148 (D)
— 118
S v Siwela 1999 (2) SACR 685 (W)
— 236
S v Smith 1969 (4) SA 175 (N)
— 10, 16, 23, 24, 110
S v Snyman 1999 (2) SACR 169 (C)
— 124
S v Soci 1998 (2) SACR 275 (E)
— 46
S v Stanfield 1997 (1) SACR 221 (C)
— 93
S v Steyn 2001 (1) SACR 25 (CC)
— 235
S v Stouyannides 1992 (2) ZLR 126 (S)
— 75
S v Sullivan 1969 (2) SA 385 (A)
— 195
S v Swanepoel 1999 (1) SACR 311 (O)
— 88
S v Swartbooi 1991 (2) SACR 54 (Nm)
— 177
S v Thebus 2002 (2) SACR 566 (SCA)
— 101
S v Theko 2010 (2) SACR 339 (GNP)
— 177
S v Thornhill (2) 1998 (1) SACR 177 (C)
— 4, 289, 290
S v Tokota 1997 (2) SACR 369 (E)
— 209
S v Tshabalala 1998 (2) SACR 259 (C)
— 83, 92, 107, 113, 116, 117, 126, 153
S v Tsotsi 2004 (2) SACR 273 (E)
— 231, 284
S v Vankathathnam 1972 (2) PH H139 (N)
— 145
S v Vanqa 2000 (2) SACR 371 (Tk)
— 100
S v Venter AD case no 59/95, 28 March 1996 (unreported)
— 122, 125
S v Vermaas 1996 (1) SACR 528 (T)
— 73, 77, 84, 92, 144
S v Viljoen 2002 (2) SACR 550 (SCA)
— 102, 103, 105, 141, 221, 240 241
S v Visser 1975 (2) SA 342 (C)
— 12, 164
Page xxxviii
S v Volkman 2005 (2) SACR 402 (C)

— 158
S v Weinberg 1966 (4) SA 660 (A)
— 257
S v Williams 1981 (1) SA 1170 (ZA)
— 143
S v Yanta 2000 (1) SACR 237 (Tk)
— 102
S v Z 2004 (1) SACR 400 (E)
— 281
S v Zibula 1968 (2) SA 596 (E)
— 191, 246, 193, 194, 248
SA Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C)
— 106
Sachs v Minister of Justice 1933 TPD 141; 1934 AD 11
— 201
Saloman WCHC case no A239/08, 14 December 2010 (unreported)
— 121
Salzwedel 1933 (2) PH H187 (E)
— 146
Salzwedel 1934 EDL 10
— 171
Sandig v Attorney-General 1936 (1) PHH83 (T)
— 145
Sandig v Attorney-General JC 198/36 TPD
— 79
Schermbrucker v Klindt NO 1965 (4) SA 606 (A)
— 259, 257
Schutte v Attorney-General 1941 (1) PH H82 (T)
— 146
Sebe v Magistrate, Zwelitsha 1984 (3) SA 885 (Ck)
— 205, 245
Secretary of State for Education and Science v Metropolitan Borough of Thameside (1977) AC 1014 (HL)
— 255
Sesedi v Attorney-General, Cape Province 1952 (2) PH H175 (C)
— 232
Shabalala v Attorney-General, Transvaal 1995 (2) SACR 761 (CC)
— 68, 103, 145
Shaw 1922 TPD 210
— 176
Shaw v Collins (1883) 2 SC 389
— 44, 46
Sigaba v Minister of Defence and Police 1980 (3) SA 535 (Tk)
— 201, 255
Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A)
— 194
Simmons v United States, 390 US 377 (1968)
— 124
Singh v Attorney-General, Transvaal 1967 (2) SA 1 (T)
— 257
Smith 1947 (1) PH H9 (C)
— 175, 188
Smith v Attorney-General, Bophuthatswana 1984 (1) SA 196 (B)
— 108, 233
Smith's Trustee v Smith 1927 AD 482
— 64
Solicitor-General v Malgas 1918 AD 489 491
— 287
Stögemüller v Austria 10 November 1969 Series A9 para 4
— 22
Stack v Boyle 342 US 1 (1951)
— 29
Stack v Boyle 342 US 1 (1952) 4
— 34
Stack v Boyle 342 US 1 4
— 16, 22
Stack v Boyle
— 29
State v Williams 343 A 2d 29 (1975)
— 123
Stephen WLD case no. A1237/93 (unreported)
— 123, 127
Swart 1923 NPD 133
— 118, 143, 165
Page xxxix
T
Tavase WCHC case no A411/11 (unreported)
— 226
Terry v Botes 2003 (1) SACR 206 (C)
— 203
The People (Attorney-General) v O'Brien [1965] IR 142
— 128
Thebus CPD case no 5692/02, 5 September 2002 (unreported)
— 224, 226, 229, 230
Thuntsi v Attorney-General, Northern Cape 1982 (4) SA 468 (NC)
— 256
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A)
— 167
Traité des Obligations (Evans tr) (1806) 463
— 180
Trope v Attorney-General 1925 TPD 175
— 56
Tsose v Minister of Justice 1951 (3) SA 10 (A)
— 11, 208
Twayie v Minister van Justisie 1986 (2) SA 101 (O)
— 14, 15, 25, 44, 56, 59, 115
U
Ugochukwu CPD case no A280/2004, 26 March 2004 (unreported)
— 117
United States v Dohm 618 F 2d 1169 (1980)
— 125
United States v Salerno 481 US 739 (1987)
— 29, 93
V
Van der Berg 1984 SACC 275 276
— 167
Van Eeden v DPP, Cape of Good Hope 2005 (2) SACR 22 (C)
— 242
Van Vuuren (A468/11) [2011] ZAGPJHC 185 (7 December 2011)
— 103, 117
Veenendal v Minister of Justice 1993 (1) SACR 154 (T)
— 288
Veenendal v Minister of Justice 1993 (2) SA 137 (T)
— 4, 290, 293
Vermeulen v Vermeulen 1940 OPD 25
— 194
Vermooten 10 CTR 17
— 161
Vivian 9 CTR 221
— 189
Volschenk v Volschenk 1946 TPD 486 487-8
— 169
W
Watsham v Hudson 6 HCG 125
— 44
Weil (1885) 1 G 39
— 167
Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A)
— 25, 267
Woolmington v DPP [1935] AC 462 (HL)
— 19
Wright v Henkel (1903) US 40
— 291
Z
Zondi 1974 (1) PH H10 (N)
— 191
Page 369
Index
References are to paragraph numbers

A
ALTERNATIVES TO BAIL
Adults, release on warning — 13.3
Advisability of implementing — 13.1
Advisable in minor cases — 13.3
Application
Accused disregarding summons — 13.2
Minimal risk of abscondment — 13.3
Written notice — 13.3
Breach of conditions — 13.4
Committal to place of safety — 13.6
Conditions added to warning — 13.3
Court, release by — 13.3
Offences excluded — 13.3
Record — 13.3
Distinguished from bail — 13.5
Effect of warning — 13.3
Failure to heed warning
Criminal offence — 13.4
Custodian, consequences for — 13.4
Onus on accused — 13.4
Sentence — 13.4
Pending appeal or review
Not competent — 13.5
Place of safety, committal to — 13.6
Police official, release by — 13.3
Offences excluded — 13.3
Written notice — 13.3
Release on summons — 13.2
Release on warning — 13.3, 13.5
Cancellation of
Appeal not competent — 15.29
Review — 15.30
Release to custodian — 13.4
Summons
Advisable where address known — 13.2
Contents — 13.2
Failure to heed, consequences — 13.2
Supervised release — 13.7
Supervised release — 13.7
Conditions may be added — 13.7
Written notice
Content of — 13.3
Disregard, consequences of — 13.3
Who may issue — 13.3
AMOUNT OF BAIL
Appeal against — 15.4, 15.13
Bill of Rights — 10.3
Considerations — 10.3
Discretion of court — 2.1
Excessive amount not permitted — 10.3
Increase, application for — 10.4
Jurisdiction — 10.5
Procedure for application — 10.7
Record of proceedings in full — 10.7
Increase, securing accused's attendance at application — 10.6
Onus — 10.8
Prohibition against excessive — 4.8
Reasonable — 4.8
Reduction, application for — 10.4
Procedure for application — 10.7
APPEAL
Active order by court required — 15.3
Against amendment of conditions — 15.13, 15.15
Against amount — 15.4, 15.13
Against bail conditions — 15.4, 15.13
By attorney-general — 15.1, 15.13
Pending appeal or review — 15.16
Against cancellation of bail
Against cancellation of release on warning — 15.29
Against conditions of release on warning
Against dismissal of bail appeal by single judge, to which court — 15.8
Against forfeiture of bail money
Page 370
Against granting of bail

By attorney-general — 15.1
Against granting of bail by lower court — 15.9
By state — 15.9
Accused entitled to legal representation — 15.10
Costs — 15.11
Leave required from judge in chambers — 15.10
Against granting of bail by superior court — 15.12
By state — 15.12
Costs — 15.12
Leave required — 15.12
Against placement in place of safety — 15.31
Against refusal of bail
By attorney-general or prosecutor — 15.2
By court having appellate jurisdiction — 15.8
By lower court — 15.3
By police official — 15.2
By superior court — 15.5
As court of first instance — 15.6
As court of second instance — 15.7
Cancellation of bail 'not refusal' — 15.17
Court refusing to hear application, whether 'refusal' — 15.3
Extra-curial — 15.2
Excessive bail not 'refusal' — 15.3
New facts arising after refusal — 7.7
Appeal must not rely on such facts — 15.19
Facts must be placed before refusing court — 15.19
Further refusal appealable — 15.19
Refusal pending appeal or review — 15.27
Refusal to hear application, whether 'refusal' — 15.3
Unreasonable condition not 'refusal' — 15.3
Against refusal of bail by attorney-general or prosecutor — 15.2
Against refusal of police bail
Against refusal of release on warning — 15.27
Against release on warning — 15.27
Against supplementation of conditions — 15.13, 15.14
Against unreasonable bail conditions — 15.13
Amount included in conditions — 15.13
Immaterial when imposed — 15.13
Extradition proceedings (see EXTRADITION PROCEEDINGS)
Leave to appeal lower court's decision — 15.4
Pending appeal or review — 15.16
Principles
High Court's discretion — 15.1
No different from criminal appeal — 15.1
Subjective desire of accused — 15.1
Unfettered right of appeal — 15.1
Procedure — 15.20
Reasons to be supplied to court of appeal — 15.20
Time limits — 15.20
APPLICATION FOR BAIL
Access to contents of police docket — 7.4
Accused, whether onus on — 7.9
Accused's age — 17.5
Accused's criminal record — 8.8
Accused's request to be brought before court — 6.5
Administrative proceedings and — 8.2, 8.14
At police station (see POLICE BAIL)
Audio-visual links — 16.12
By witness — 16.3
Children — 17.5
Civil proceedings and — 8.3, 8.4
Conditions (see BAIL CONDITIONS)
Crime control — 4.4, 7.9, 8.13
Criminal proceedings and — 8.2
Due process — 4.4, 7.9, 8.13
Extradition (see EXTRADITION PROCEEDINGS)
Page 371
Extraordinary proceedings (see EXTRAORDINARY PROCEEDINGS)

In court (see BAIL HEARINGS)
Informal procurement of information — 7.3
Initiation of — 6.1
Interests of justice vs personal interests of accused — 7.8
Issues in (see ISSUES IN BAIL HEARINGS)
Judicial proceedings and — 8.2, 8.14
Legal representation in — 7.21, 8.2
Neither curial nor extra-curial — 16.12
Ordinary proceedings — 8.2
Outside normal court hours — 2.5
Pending appeal (see RELEASE PENDING APPEAL)
Personal interests of accused vs interests of justice — 7.8
Postponement of hearing for lack of information — 7.5
Powers of attorney-general — 16.1
Procedure
Pre-Constitution era — 7.1
Procedure in Schedule 5 applications — 7.15
Procedure in Schedule 6 applications — 7.18
Raising question of bail — 7.2
Record of proceedings — 7.22
Renewed applications — 7.7
Risks (see ISSUES IN BAIL HEARINGS)
State,whether onus on — 7.11
Statement of personal facts — 7.22
To attorney-general or prosecutor — 5.2
Urgency of — 2.5
ARREST
Summons procedure preferable — 2.2
ATTORNEY-GENERAL
Appeal by — 15.1
Attitude a relevant factor — 9.16
Certificate nolle prosequi — 16.7
Discretion to deny access to information in police docket — 16.6
Extraordinary position — 16.6
Extraordinary powers — 16.1
Opposition to bail — 9.16
Power to arrest witnesses — 16.2
Power to authorise bail — 5.1
Power to detain witnesses — 16.2, 16.3
Power to hear bail application — 5.2
Record of bail proceedings — 5.3
B
BAIL
Advantages of — 2.6
Alternatives to (see also ALTERNATIVES TO BAIL) — 13.1
Amount (see AMOUNT OF BAIL)
Analytical models and — 7.9
Appeals (see APPEAL)
Application for (see APPLICATION FOR BAIL and BAIL HEARINGS)
Australia — 4.2
Bargaining — 2.1
Basis of — 4.3
Bill of Rights and (see BILL OF RIGHTS)
Bill of Rights, in cancellation of (see CANCELLATION OF BAIL)
Canada — 4.2
Cash — 4.8
Conditions (see BAIL CONDITIONS)
Constitution and (see BILL OF RIGHTS)
Constitution, in — 4.3
Contractual nature of — 2.1
Court to investigate accused's ability to pay — 16.10
Crime control — 4.4, 7.9, 8.13
Definition — 1.1
Due process — 4.4, 7.9, 7.11, 8.13
Duration of — 5.7, 6.9
England — 4.2
European Convention on Human Rights — 4.2
Extra-curial (see also POLICE BAIL and ATTORNEY-GENERAL) — 5.1
Extradition proceedings (see EXTRADITION PROCEEDINGS)
Fagan Report — 16.9, 16.10
Financial inducement — 10.11
Page 372
Granted by attorney-general (see also EXTRA-CURIAL PROCEEDINGS) — 5.1

History of process — 1.2
History of process in South Africa
Common law — 1.3
Statute — 1.3
Impecunious awaiting-trial prisoners — 4.8, 6.7, 10.2, 16.10, 16.11
Interim Constitution and (see BILL OF RIGHTS)
Interim Constitution, in — 4.6
International Covenant on Human and Political Rights — 4.2
Issues (see ISSUES IN BAIL HEARINGS)
Legal representation — 7.21
Liberty, right to — 4.1
Military tribunals — 18.1
Money(see BAIL MONEY)
Nature of — 2.1
No substitute for speedy trial — 2.4
Non-penal character of — 1.1, 2.3
Opposition to, by attorney-general — 9.16
Onus — 4.4, 4.6
Pending appeal (see RELEASE PENDING APPEAL)
Peregrini — 7.19
Police bail (see POLICE BAIL)
Policy considerations — 2.2
Posting of (see also BAIL MONEY; SURETIES) — 11.1
Pre-Constitution era, in — 4.5
Pre-trial release, form of — 1.1
Presumption of innocence — 1.1, 2.5, 2.6, 3.1, 3.4
Prison conditions as prompt to proceedings — 16.9, 16.10, 16.11
Privilege and not a right — 4.4
Protection of dignity, health and safety of prisoners — 16.11
Purpose of — 1.1, 2.6
Remission of (see BAIL MONEY)
Reverse onus — 4.2, 7.10, 7.12, 7.13, 7.14, 7.15, 7.18, 16.8
Review (see REVIEW)
Right to — 3.4, 4.2, 4.3
Right to apply for — 4.5
Risks (see ISSUES IN BAIL HEARINGS)
Sources of process — 1.2
Sureties (see SURETIES)
United Nations Human Rights Committee — 4.2
United States of America — 4.2
Urgency, matter of — 2.5
Valid reasons for refusal of — 1.1
Witnesses — 16.3
BAIL CONDITIONS
Absolute conditions — 6.7
Accused posts bail or security — 10.2
Cannot stand alone — 10.1, 10.2
Amendment of — 10.25
Application proceedings must be recorded in full — 10.25
Appeal against (see APPEAL)
Breach of as punishable offence (see also CANCELLATION OF BAIL) — 10.26
Discretionary conditions — 6.8
General conditions
Payment of bail money — 6,7
That accused serves sentence — 10.10
That accused stands trial — 6.7, 10.9
Money, payment of (see also AMOUNT OF BAIL) — 10.1
Must be
Appropriate — 10.1
Capable of implementation and control — 10.22
Clear — 10.20
Intra vires — 10.21
Necessary — 10.23
Reasonable — 10.2, 10.18, 10.23
Must not be
Contra bonos mores — 10.1, 10.24
Ultra vires — 10.1
Specific conditions
Accused not to communicate with state witnesses — 10.16
Accused not to visit place — 10.15
Accused to report in person — 10.14
Applicable once bail has been granted — 10.11
Domicilium citandi — 10.17
Generally — 10.11
House arrest — 10.19
Page 373
Interpretation of words
'Bail has been granted' — 10.12
'On application by prosecutor' — 10.13
Residual conditions — 10.18
Supplementation of — 10.25
Application proceedings must be recorded in full — 10.25
Undertaking that accused will stand trial — 6.7
BAIL HEARINGS
Absolute condition — 6.7
Access to information — 7.4
Accused's request to be brought before court — 6.5
Administrative proceedings and — 8.2, 8.14
Audio-visual links — 16.12
Civil proceedings and — 8.3, 8.4
Conditions (see also BAIL CONDITIONS) — 6.7
Considerations at (see ISSUES IN BAIL HEARINGS)
Criminal proceedings and — 8.2, 15.8
Evidence (see also EVIDENCE)
Further evidence ordered by court — 7.5
Presentation of — 7.4
Rules of (see EVIDENCE)
Further information ordered by court — 7.5
Informal procurement of information — 7.3
Initiation of — 6.1
Interests of justice vs personal interests of accused — 7.8
Issues (see ISSUES IN BAIL HEARINGS)
Judicial proceedings and — 8.2, 8.14
Jurisdiction of court — 6.2
Before transfer to another court — 6.2.1
Concurrent — 6.2.1
Court to which accused is referred in terms of s 59A — 6.2.3
No limitation as to offences — 6.2
Schedule 6 applications — 6.2.2, 6.6
Jurisdictional facts — 6.3, 16.2
Accused must be in custody — 6.3
'In respect of such offence' — 6.3
Objective determination — 6.3
Nature of
Civil proceedings, whether — 8.4, 15.6
Criminal proceedings, whether — 8.2,8.14, 15.8
Inquisitorial proceedings, whether — 2.1, 6.2.2, 7.6, 7.9
Judicial proceedings, whether — 8.2, 8.14
No limitation as to offences — 6.6
Non-court days — 2.5
'Objective jurisdictional facts' — 6.3, 16.2
Onus — 7.5
Opposition by attorney-general — 9.16
Outside normal court hours — 2.5, 6.2.1
Personal interests of accused vs interests of justice — 7.8
Postponement of hearing for lack of information — 7.5
Privilege against self-incrimination — 8.12
Procedure in renewed applications — 7.7
Release absolutely conditional — 6.7
Relevance to subsequent trial — 8.13
Review — 15.21
Procedure — 15.26
Right to present evidence — 8.2
Statutory provisions
'At any stage' — 6.4
'At his first appearance' — 2.5, 6.5
Urgency, matter of — 2.5
BAIL MONEY (see also AMOUNT OF BAIL)
Alternatives to — 6.7, 10.2, 11.6
Amount
Increase — 10.4
Jurisdiction of court — 10.5
Must be reasonable — 10.1
Onus in application for increase or reduction — 10.8
Procedure for application for increase or reduction — 10.7
Reduction — 10.4
Securing accused's attendance at application for increase — 10.6
Court to investigate accused's ability to pay — 16.10
Page 374

Excessive amount not permitted — 10.3
Guarantee in lieu of (see also SURETIES) — 6.7, 11.6
Payment of
By accused — 11.2
By third party — 11.1, 11.3
In cash — 4.8, 11.1
Receivers of — 11.2, 11.4
Refund of — 11.5, 12.21
Review of forfeiture of — 15.25
Remission of — 12.21
Two-stage fixing — 10.4
BAIL RISKS (see ISSUES IN BAIL HEARINGS)
BILL OF RIGHTS
Amount of bail — 10.3
Bail matters, urgency of — 2.5
Bail, right to — 2.6, 4.1
Interim Constitution — 4.6
Other jurisdictions — 4.2
Pre-Constitution era — 4.5
Section 60(1)(a) and — 4.7
Bail, speedy trial and — 2.4
Constitutionality of section 60(11)(a) and (b) — 7.12
Admissibility of record — 8.13
Anti-terrorism legislation — 16.4, 16.5
Detention of witnesses — 16.2, 16.3
Fair trial, right to — 2.4, 3.1, 3.2, 7.2, 7.4, 8,13
'Interests of justice' — and — 7.11, 9.12
International Covenant on Civil and Political Rights — 17.2
Liberty, right to — 4.1
Onus — 4.4, 7.11
Analytical models and — 7.9
Interim Constitution and — 7.9
Reverse onus — 4.2, 7.10, 7.12, 7.13, 7.14, 7.15, 7.18, 16.8
Presumption of innocence — 1.1
Application of to bail — 2.3
Content of — 3.1
Importance of, in democracy — 2.3
Pre-trial liberty in, and — 2.3
Reasonableness as requirement of conditions — 10.18
Reverse onus — 4.2, 7.10, 7.12, 7.13, 7.14, 7.15, 7.18, 16.8
Speedy trial, bail and — 2.4
Urgency of bail matters — 2.5
C
CANCELLATION OF BAIL
Accused about to abscond
Time of essence — 12.15
Audi alteram partem — 12.15
Magistrate must be 'satisfied' — 12.15, 12.17
Onus — 12.17
Procedure — 12.17
'Reason to believe' — 12.15
Reinstatement of bail — 12.15
Time not of essence — 12.14
Audi alterampartem — 12.14
Information presented on oath — 12.14
Onus — 12.17
Procedure — 12.17
Accused interfering with state witnesses — 12.16
'Interests of justice' — 12.16
Onus — 12.17
Procedure — 12.17
Accused, requested by — 12.18
Appeal against — 12.20
Effect of — 12.19
Failure to appear
Absence of fault — 12.2
Consequences — 12.3
Criminal offence — 10.26, 13.2
Provisional cancellation of bail — 1 2.2, 12.3
Provisional forfeiture of bail money — 12.3
Warrant of arrest — 12.2
'Evidence' — 12.5
Extension of time — 12.2
'Good cause' — 12.3
'Issue' of warrant of arrest — 12.3
Onus — 12.5
Page 375
Procedure — 12.5
Record of proceedings desirable — 12.5
'Unless' court is 'satisfied' — 12.3
Failure to observe conditions
Application by prosecutor — 12.7
Criminal offence — 10.26
Discretion — 12.12
Fault — 12.11
Onus — 12.10
Presence of accused — 12.8
Procedure — 12.10
Record of proceedings obligatory — 12.10
New application after cancellation — 12.19
Not 'refusal' — 15.17
Refund of bail money — 11.5, 12.18, 12.21
Renewed applications pursuant to prior withdrawal — 7.7
Requested by accused — 12.18
Review of — 12.20
When competent — 12.1
CHILDREN
Best interests — 17.1
Detention 'a measure of last resort' — 17.2, 17.5
Detention 'for the shortest appropriate period of time' — 17.2, 17.5
Interests of justice — 17.2
Onus — 17.2
Release into care — 17.5
Rights — 17.1
Role of court granting bail — 17.5
Role of court refusing bail — 17.6
Role of police — 17.3
Role of prosecutor — 17.4
Safety of the community — 17.2
CONSTITUTION (see BILL OF RIGHTS)
CORRECTIONAL SUPERVISION — 14.2, 14.3
COURT BAIL (see BAIL HEARINGS)
COURTS
Exercise of common law powers is discretionary — 1.3
Granting of bail, amount and conditions are discretionary — 2.1
Granting of bail not to be influenced by punitive notions — 2.3
High Court's common law power to grant bail — 1.3, 18.4
Obligation to hear application outside normal hours and on non-court days — 2.5
Preventative detention not justifiable — 2.3
Protection of individual's liberty — 2.1
Safeguarding proper administration of justice — 2.1
D
DIRECTOR OF PUBLIC PROSECUTIONS (see ATTORNEY GENERAL)
E
EVIDENCE
Access to police docket — 7.4
Accused's criminal record — 8.8
Admissibility
Bail record at subsequent trial — 8.13
Incriminating statement — 8.12
Admissions and confessions — 8.11, 8.14
Affidavit — 8.1, 8.13, 8.14
At bail hearing — 7.4, 7.20
Character — 8.9
Basis for admission — 8.10
Court may call for — 2.1
Hearsay — 8.3
Basis for exclusion — 8.3
Discretionary admission — 8.3
Onus — 8.1
Opinion — 8.5
Investigating officer — 8.5
Presentation of — 7.4, 8.2, 12.8
Previous convictions — 8.8
Privilege
Professional — 16.12
Self-incrimination, against — 8.12, 8.13
Record of
Admissibility at subsequent trial — 8.13
Right to present — 8.2
Rules of trial — 8.14
Self-incrimination — 8.12, 8.13
Similar fact — 8.7
Viva voce — 8.13, 8.14
Page 376
EXTRA-CURIAL PROCEEDINGS
Application to attorney-general or prosecutor — 5.1
Application to police (see POLICE BAIL)
Conditions — 5.1, 6.7, 10.26
Discretion — 5.1, 5.4
Duration — 5.7
Legal representation — 5.3, 5.6
Limitation as to offences — 5.1, 6.6
Official having jurisdiction — 5.2
Procedure and formalities — 5.3
Review
EXTRADITION PROCEEDINGS
Alternatives to bail
No provision for — 19.5
Appeal from
Includes refusal of bail — 19.3
Bail conditions, non-compliance with
No provision for rendering as criminal offence — 19.5
Bail in
After committal — 19.4
No other party allowed appeal — 19.3
Pending appeal against Order — 19.2, 19.5
Pending enquiry — 19.2
Enquiry
Appeal against order — 19.3
Appeal against refusal of bail — 19.3
Bail, pending — 19.2
Conducted by magistrate — 19.2
'Criminal proceedings', distinguished from — 19.2
Nature of — 19,3
Quasi-judicial nature — 19.3
Extradition Act, governed by — 19.1
Judicial review — 19.5
Magistrate
Area of arrest of suspect — 19.2
Discretion — 19.2
Function quasi-judicial — 19.3
Not 'lower court' — 19.3
Powers of — 19.2
Nature of enquiry — 19.3
Not 'criminal proceedings' — 19.2
Quasi-judicial — 19.3
Preparatory examination, distinguished from — 19.2
Procedure — 19.2
Purpose of — 19.1
Refusal of bail
Appealable — 19.3
High Court may reverse — 19.3
Not refusal by 'lower court' — 19.3
Suspect's future surrender — 19.2
Treaty obligations — 19.2
EXTRAORDINARY PROCEEDINGS
Anti-terrorism legislation
Arrests to ensure presence at criminal or extradition proceedings — 16.5
Arrests without a warrant — 16.5
Detention (current law) — 16.5
Detention (recent history) — 16.4
Evading service of subpoena — 16.2
Arrest of witnesses — 16.2
About to abscond — 16.2
Attorney-general, powers of — 16.1, 16.3
Bail, detention of witness and — 16.3
Detention of witnesses, bail And — 16.3, 16.8
Record-keeping by custodial authorities — 16.3
Witnesses — 16.2, 16.3
F
FINAL CONSTITUTION (see BILL OF RIGHTS)
I
INTERDICTUM DE HOMINE LIBERO EXHIBENDO — 16.8
INTERIM CONSTITUTION (see BILL OF RIGHTS)
ISSUES IN BAIL HEARINGS
Attorney-general, attitude of — 9.16
Character of accused, relevance of — 9.4
Charge, relevance of — 9.15
Community, attitude of — 9.10
Generally — 9.1
Interests of justice — 9.11, 9.12
Minor children of accused — 9.13
Personal factors
Additional guidelines — 9.11
Advanced age — 9.11
Business commitments — 9.11
Dependants to support — 9.11
Financial position — 9.11
Page 377
Gender — 9.11
Poor health — 9.11
Race — 9.11
Youthfulness — 9.11
Public interest — 9.12
Referrals for observation — 9.14
Risks
Abscondment — 1.1, 1.2, 7.13, 8.8, 8.10, 9.4
Accused's character — 9.4
Accused's mobility — 9.4
Conviction of lesser offence — 9.4
Extradition treaties — 9.4
Foreign nationality — 9.4
Gravity of charge — 9.4
Past response to release on bail — 9.4
Previous convictions — 9.4
Strength of state's case — 9.4
Suicide — 9.4, 10.18
Commission of further offences
Fear of — 9.2
Propensity for — 9.2
Destruction of physical evidence — 8.11, 9.7
Disturbing public order — 9.10
Definition of 'exceptional circumstances' — 7.16.1, 9.10
Endangering public safety — 9.2
Interference with state witnesses — 8.11, 9.6
Actual interference — 9.6
Interference in previous case — 9.6
List of witnesses — 9.6
Position of accused — 9.6
Position of witness — 9.6
State of investigation — 9.6
Well-grounded fear — 9.6
To criminal justice system — 9.8
To public safety and state security — 9.8
To safety of any person — 9.3
L
LEGAL REPRESENTATION
Accused about to abscond — 12.17
Accused interfering with state witnesses — 12.17
Appeal and review — 15.10
At application to attorney-general or prosecutor — 5.6
At bail hearing — 7.21, 8.2
At police station — 5.3, 5.6
In court — 7.21
M
MILITARY TRIBUNALS
High Court's common law power to grant bail — 1.3, 18.4
Interests of justice — 18.2, 18.3
No provision for release on bail pending trial — 18.1
Pre-trial release — 18.2
Release during trial — 18.3
Release pending appeal — 14.13, 18.4
Release pending review — 14.13, 18.4
O
ONUS
Accused, whether on — 7.9
Balance of probabilities — 7.9
Bill of Rights, and — 7.11
Crime control model — 7.9
Due process model — 7.9
Final Constitution and (see also BILL OF RIGHTS) — 7.11
In application for increase or reduction of amount — 10.8
Incidence of, in terms of Section 60(11)(a) — 7.17
Incidence of, in terms of Section 60(11)(b) — 7.14
Interim Constitution and (see also BILL OF RIGHTS) — 7.10
Peregrini — 7.19
Pre-Constitution era — 7.1, 7.9
Reverse onus — 4.2, 7.10, 7.12, 7.13, 7.14, 7.15, 7.18, 16.8
Section 60(11)(a) read with Schedule 6 — 7.16
Definition of 'exceptional circumstances' — 7.16.1
Likelihood of acquittal as 'exceptional circumstance' — 7.16.3
'Ordinary circumstances' as 'exceptional circumstances' — 7.16.2
Preparation of defence as 'exceptional circumstance' — 7.16.4
Page 378
Proof of 'exceptional circumstances' — 7.16.5, 9.15

Section 60(11)(b) read with Schedule 5 — 7.13
State, whether on — 7.11
P
POLICE BAIL — 2.5, 5.1
Accused not entitled to present evidence — 8.1
Administrative proceedings — 5.6
Before first court appearance — 5.1, 5.7
Cancellation of bail provisions applicable — 5.7
Cash amounts only — 5.1, 5.5
Conditions — 5.1
Discretion — 5.1, 5.4
Duration — 5.7
Guarantees not accepted — 5.1
Legal representation — 5.3, 5.6
Limitation as to offences — 5.1, 6.6
No discretionary conditions — 5.5
Procedure and formalities — 5.3
Rules of evidence — 8.1
Sureties not accepted — 5.1
PRESUMPTION OF INNOCENCE (see also BILL OF RIGHTS)
Application to pre-trial processes — 3.1
Bail pending appeal or review — 14.4
Bail process, and — 1.1, 2.6, 3.4
Content of — 3.1
Corollary of right to fair trial — 3.1, 3.2
Importance in constitutional democracy — 3.2
Non-penal character of bail — 2.3
Onus, and — 3.3
Pre-trial liberty, and — 2.5, 3.3
Reverse onus, and — 4.2
PRIVATE PROSECUTIONS — 16.7
PRIVILEGE
Self-incrimination, against — 8.12
R
RELEASE ON SUMMONS — 13.2
RELEASE ON WARNING — 13.3
Appeal against cancellation of — 15.29
Appeal against conditions attached to — 15.28
Appeal against grant or refusal of — 15.27
Cancellation — 13.4
Distinguished from bail — 13.5
Failure to appear — 13.4
Impecunious awaiting-trial prisoners — 4.8, 6.7, 10.2, 16.10, 16.11
Onus — 13.4
Review of proceedings — 15.30
RELEASE PENDING APPEAL
Absolutely conditional on payment of bail — 14.1
Amount of bail — 14.4
Appeal against sentence only — 14.5, 15.16
Bail pending appeal — 14.1
Decisions of military tribunals — 14.13
Lapse of bail
Appeal not prosecuted — 14.7
Extension of bail — 14.7
Late filing of notice of appeal — 14.7
Leave to appeal
Simultaneous lodgement of trial record — 14,4
Principles
Abscondment, increased risk of — 14.4
Amount, increase of — 14.4
Sentence, severity of — 14.4
Presumption of innocence — 14.4
Prospects of success on appeal — 14.5
Schedule 6 offences — 14.4
Prospects of success on appeal — 14.5
Onus — 14.6
'Reasonable prospects' — 14.5
Significance of — 14.5
Test applied by courts — 14.5
Release otherwise than on bail
Sentence, operation of suspended by bail — 10.10
Warning, release on
RELEASE PENDING PETITION
Bail pending petition — 14.8, 14.9
Petition to Chief Justice — 14.8
Petition to Constitutional Court — 14.11
Petition to Judge President — 14.10
Petition to Minister — 14.12
All recognised legal procedures exhausted — 14.12
Page 379
Petition to Supreme Court of Appeal — 14.9

Order granting bail — 14.9
Principles (see RELEASE PENDING APPEAL)
Prospects of success (see RELEASE PENDING APPEAL)
Power to grant bail
No inherent power — 14.9
RELEASE PENDING REVIEW
Absolutely conditional on payment of bail — 14.2
Bail pending review — 14.2
Decisions of military tribunals — 14.13
Lapse of bail — 14.7
Lower court's proceedings — 14.2
Principles (see RELEASE PENDING APPEAL)
Prospects of success (see RELEASE PENDING APPEAL)
Release otherwise than on bail not competent — 14.2
Warning, release on
REVIEW
Amendment of bail conditions — 15.23
Application for bail, of
To attorney-general or prosecutor — 15.21
To court — 15.21
To police — 15.21
Application for release on warning, of — 15.30
Application to amend bail conditions, of — 15.23
Application to cancel bail, of — 12.20, 15.24
Application to supplement bail conditions, of — 15.22
Cancellation of bail, of — 15.24
Forfeiture of bail money, of — 15.25
Placement in place of safety, of — 15.32
Proceedings in respect of release on warning — 15.30
Procedure — 15.21
Supplementation of conditions, of — 15.22
RISKS (see ISSUES IN BAIL HEARINGS)
S
SURETIES
Adequacy of — 11.8
Assessment of liability — 11.7
Generally — 11.7, 13.5
Indemnification of — 11.10
Nature and extent of obligations — 11.7
Not accepted for police bail — 5.1
Release of — 11.9
Remission of bail forfeited — 12.21
What obligation of accused is secured — 11.7
U
URGENCY
Bail a matter of — 2.5
Court bail after hours, no entitlement to — 2.5

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BAIL

John van der Berg

4.7 Section 60(1)(a) and the Bill of Rights

7.7 Procedure in renewed applications

8.11 Admissions and confessions

10.6 Securing accused's attendance at application for increase of amount of bail

13.5 Release on warning distinguished from bail

15.13 Appeal against bail conditions

16.11 Bail procedures prompted by prison conditions: s 63A

Appendix I Quickfinder: Bail application ito s 60(11)(a)

1.2 Early history and sources

1.3 South Africa: statute and common law

2.1 Contractual nature of bail and 'bail bargaining'

2.2 Policy considerations

2.3 Non-penal character of bail [25]

2.4 Release on bail no substitute for a speedy trial

2.5 Bail hearing and adjudication a matter of urgency

2.6 The purpose of bail

3.1 The content of the presumption

3.2 The importance of the presumption in a constitutional democracy

3.3 The presumption and pre-trial liberty

3.4 Application of the presumption to the bail process

In similar vein is the following South African academic authority: [29]

4.1 The right to liberty

4.2 The right to bail in some other jurisdictions

4.3 Theoretical basis of the right to bail in South Africa

4.5 The pre-Constitution era

4.6 The interim Constitution

4.7 Section 60(1)(a) and the Bill of Rights

4.8 Cash bail and the poor: a hollow right?

5.1 Limitation as to offences

5.2 Official having jurisdiction

5.3 Procedure and formalities

5.5 Police bail: no discretionary conditions

5.6 Legal representation

5.7 Duration of extra-curial bail

6.1 Initiating the bail hearing

6.2 Court having jurisdiction

6.2.3 Court to which accused is referred in terms of s 59A

6.3 Jurisdictional facts [17]

6.4 The words 'at any stage' in s 60(1)(a)

6.5 Request by accused to be brought before court

6.6 No limitation as to offences

6.7 Release absolutely conditional

6.8 Additional discretionary conditions

6.9 Duration of bail granted by court [64]

7.1 The pre-Constitution era

7.2 Raising the question of bail: s 60(1)(c)

7.3 Informal procurement of information: s 60(2)(b)

7.4 Access to information and presentation of evidence: s 60(14) and s 60(2)(c)

7.5 Postponement of hearing for lack of information: ss 60(2)(a) and 50(6)(d)

7.6 Court requiring further information or evidence: s 60(3)

7.7 Procedure in renewed applications

7.8 The provisions of s 60(9) and s 60(10)

7.9 The analytical models and the incidence of the onus

7.10 The interim Constitution and the onus

7.11 The onus in s 60(1)(a) and the Bill of Rights

7.12 Constitutionality of s 60(11)(a) and s 60(11)(b)

7.13 The onus in s 60(11)(b) read with Schedule 5