Striking a balance in bail proceedings – how does a court determine bail in the interest of justice?

July 1st, 2020

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The ‘interest of justice’ principle would be meaningless and ineffective without the court carrying out its legislative duties of ensuring that a balance is struck in each and every bail proceeding. What is of significance is the following question: On what basis does a court determine that the interest of justice permits the release of a person on bail? This article focusses on the role that courts should play in interpreting the concept of the interests of justice in bail proceedings.

The role of the courts

Prior to the current South African constitutional dispensation and the codification of the bail proceedings, courts had already developed principles based on the presumption of innocence and the fundamental rights to freedom, together with the fact that bail is regarded as a very important means of giving effect to these rights during the pre-trial stages of a criminal case (MG Cowling ‘The incidence and nature of an onus in bail applications’ (2002) 15 SACJ 176 at 178). These developments were taken further in S v Hlopane 1990 (1) SA 239 (O), where the court held at 241G that it is the function of the presiding officer to inquire into the question of bail in each case. Thus, it was emphasised at 241H that courts could not rely on an accused’s silence to justify a failure to initiate a bail inquiry. This was an extremely significant development at the time, because it seemed to suggest that there is a duty on judicial officers, mero motu, to initiate bail inquiries. This, then, was a clear move away from the traditional approach to the effect that bail is dealt with in the form of an application and that the accused bears sole responsibility for initiating such application, as well as the onus of convincing the court that they should be released on bail (Cowling (op cit) at 179).

The Constitutional Court (CC) has noted that one of the observations about ch 9 of the Criminal Procedure Act 51 of 1977 (CPA) is that the discretion to grant or refuse bail is unmistakably a judicial function (S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (7) BCLR 771 (CC)). The correct jurisprudential approach to bail applications is that the court should adjudicate bail matters and that there should, as a matter of principle, be no legislative or executive attempts to curtail the jurisdiction of the courts (S v Ramgobin 1985 (4) SA 130 (N)). Courts should in effect regard legislative interventions merely as guidelines set to assist the courts in reaching a just decision. Each case should be considered on its merits and the court should consider the totality of the evidence (S v Mawela (GNP) (unreported case no A713/12, 30-11-2012) (Molefe J) at para 20).

In bail proceedings, unlike in trial proceedings, the courts play a more pro-active role. Magistrates are not to be dictated to by either of the parties on how the bail proceedings should be conducted. Nor are the courts to depend solely on the evidence led by the parties in reaching their decision as to whether the accused should be released on bail or not. It has been said in S v Bruinders 2012 (1) SACR 25 (WCC) that, as much as our criminal justice model is essentially an adversarial one – where the court is left to the comfort and safety of its armchair while the state and the accused contest the arena – the issue of bail is dealt with somewhat differently. The CPA does not treat a bail proceeding as something, which is simply to be left to one or the other of the parties to raise and deal with, particularly in regard to matters of procedure, proof and evidence (Bruinders (op cit) at para 60). Where a 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, it must order that such information or evidence be placed before it (s 60(3) of CPA). In a bail inquiry, courts are afforded greater inquisitorial powers to ensure that all material factors are before it, even when they are not presented by the parties, and courts should not disregard such factors (S v Mabena and Another [2007] 2 All SA 137 (SCA) at para 7). Where a court arrives at a decision based on insufficient information, such a court would be erring in its approach (S v Mpofana 1998 (1) SACR 40 (Tk)). Consequently, on appeal the matter may be remitted back to the court a quo to enable it to consider invoking the provisions of s 60(3) of the CPA (Mpofana (op cit)).

In terms of the provisions governing bail proceedings, judicial officers are well equipped to decide who should lead evidence and when to lead such evidence and, if the evidence already led is not enough, they are entitled to call evidence themselves in order to reach a decision that will be in the interests of justice. In Prokureur-Generaal, Vrystaat v Ramokhosi 1996 (11) BCLR 1514 (O), Edeling J noted that the provisions of ss 60(3) and (10) of the CPA characterise bail procedures as being inquisitorial beyond any doubt. This was further entrenched by the CC in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat (op cit) at para 11) when it reiterated that although bail, like the trial, is essentially adversarial, the inquisitorial powers of the presiding officer are greater.

Given the wide range of less restrictive options available to the court, aimed not only at securing the attendance of the accused at trial, but preventing the accused from engaging in the activities listed in s 60(4) of the CPA, courts are in a position to vigorously interrogate whether the reasons given by the state justify continued remand in detention (C Ballard ‘A statute of liberty? The right to bail and a case for legislative reform’ (2012) 24 SACJ 24 at 35). The court may impose any conditions on the release of an accused, which, in its opinion are in the interests of justice (s 60(12) of the CPA). Section 62 of the CPA demonstrates that the question of whether or not an accused should be granted bail is not an all or nothing process. There are a range of measures, some very restrictive, some less so, which enable a court to impose conditions commensurate with the needs of the state weighed against the freedom interests of an accused (Ballard (op cit)). The attitude of the Director of Public Prosecutions regarding the grant or refusal of bail is a relevant consideration, but their opinion must not usurp the function of the court (Bolofo and Others v Director of Public Prosecutions 1997 (8) BCLR 1135 (Lesotho CA)). Thus, the court should not be led, or misled, by the passive attitude of the prosecution (S v Sithole and Others 2012 (1) SACR 586 (KZD) at paras 5 – 7).

The standard by which courts are to carry their role

The standard, which is required from the magistrates, is the same as the one applied in trial courts regarding impartiality and fairness during the proceedings. The court is to base their findings on the evidence led. This was reiterated in the case of S v Majali (GJ) (unreported case no 41210/2010, 19-7-2011) (Mokgoatlheng J) at para 33, where the court held:

‘A bail inquiry is a judicial process that has to be conducted impartially and judicially and in accordance with relevant statutory and constitutional prescripts’. ‘It must also be appreciated that the constitutional right to a fair trial includes proceedings such as bail proceedings. Fairness and the constitutional right to a fair bail hearing are manifestly under threat where a bail magistrate – like the one in Kobese – compromises her impartiality by making the remarks and observations, which she did in the course of an ex tempore judgment dealing with the question whether a male bail applicant charged with the rape of a young girl should be released on bail in the district of Grahamstown. What our law requires is that a bail magistrate, like any judicial officer presiding over a trial, should conduct proceedings open-mindedly, impartially and fairly, and that such conduct must indeed be manifest to all concerned, especially the bail applicant’ (A Paizes (ed) Criminal Justice Review 1 of 2017 (Cape Town: Juta 2017)).

The court has previously warned that magistrates are not rubber stamps for investigating officer’s/prosecutor’s views, regarding whether bail should be granted or not (S v Joone 1973 (1) SA 841 (C) 847A – C). The court in Joone remarked that a strict independent assessment of the facts of each case, which would include a careful consideration of the circumstances of each accused, the severity of the crime and the interests of the community by the presiding officer in each case, should be done. A court hearing a bail application should not be a passive umpire (T Geldenhuys, JJ Joubert, JP Swanepoel, SS Terblanche and SE van der Merwe Criminal Procedure Handbook 11ed (Cape Town: Juta 2014) at 184). Even in instances where the state is not opposed to the release of the accused person, the court is not expected to rubber stamp that decision. The court still has a duty to weigh up the personal circumstances of the accused against the interests of justice (s 60(10) of the CPA).

Even where the state asks that the accused’s bail should be refused on the advice of the investigating officer, the duty still lies with the magistrate to evaluate the circumstances and to decide whether the proposal of the state is fair. The court should also ask itself if the further detention of the accused is in the interests of justice. If the matter of an undefended accused is remanded, a court should explain to such an accused the right to apply for bail and the procedure governing bail (s 60(1)(c) of the CPA).

However, the fact that the court is required to play an inquisitorial role in a bail application does not entitle it to resort to unfair and excessive robust questioning of the witness, including a bail applicant who has elected to testify orally in support of their application (Geldenhuys et al (op cit) at 185). A bail inquiry is an ordinary judicial process, adapted as far as needs be to take account of its peculiarities, is to be conducted impartially and judicially and in accordance with the relevant statutory prescripts.


What should not be overlooked is that, in any consideration of bail, a court must weigh two opposing interests, namely –

  • the interests of an accused, who is to be presumed innocent until proven guilty; and
  • the rights of witnesses and society at large to be protected against hardened criminals and to see that cases reach their conclusion without any undue delay.

‘Although societal interests may demand that persons suspected of having committed crimes forfeit their personal freedom pending the determination of their guilt, such deprivation is subject to judicial supervision and control’ (S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat (op cit) at para 10). Moreover, in exercising such an oversight with regard to bail, the court must not act as a passive umpire. It can be said that: ‘Developments in South African bail law since 1994 have tried to ensure that bail is granted in circumstances which balance the risk of harm which the [accused] could cause to the victim/s, witnesses and the integrity of the justice process, on the one hand, with the rights of an accused person to the presumption of innocence, on the other’ (J Burchell and A Erasmus (ed) Criminal Justice in a New Society (Cape Town: Juta 2003) at 163).

Mahlubandile Ntontela LLM (NMU) is a lecturer at the University of Fort Hare in East London.

This article was first published in De Rebus in 2020 (July) DR 18.

De Rebus