Three principal ways COVID-19 will affect South African jurisprudence in bail proceedings

June 1st, 2020

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The current COVID-19 pandemic is having profound implications on the criminal justice system. Chief Justice Mogoeng Mogoeng issued directives in terms of s 8(3)(b) of the Superior Courts Act 10 of 2013 for the management of courts during the lockdown period. Courts across the country have closed their physical doors and opened virtual ones. Examples of virtual courts reflect in recent cases, such as South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and Environmental Affairs: KwaZulu-Natal Provincial Government and Another (SCA) (unreported case no 231/19,  17-4-2020) (Petse DP and Ponnan, Swain, Makgoka and Nicholls JJA) and Liberty Group Limited t/a Liberty Life v K & D Telemarketing and Others (SCA) (unreported case no 1290/18, 20-4-2020) (Ledwaba AJA (Navsa and Van der Merwe JJA concurring)). The criminal justice system has been catapulted, quite suddenly, into the 21st century.

COVID-19 has had a profound impact on the evolving substantive criminal law jurisprudence, principally in the area of bail proceedings, but also in the area of sentencing, and likely in the area of evidence. This trend will only continue as we try to ‘flatten the curve’. It is the area of bail proceedings that is of particular importance at this stage, which requires attention. Bail applications are always a matter of urgency (see S v Block 2011 (1) SACR 622 (NCK) and Hans v District Court Magistrate, Cape Town and Others (WCC) (unreported case no 19047/19, 4-3-2020) (Thulare AJ)). I do not profess to be a prophet, but I predict that our jurisprudence concerning bail proceedings due to the COVID-19 pandemic will be affected in three principal ways, which I will discuss below.

Principal 1

First, as a material change in circumstances justifying a new circumstance or fact to reconsider a bail decision.

Courts could take judicial notice of the fact that the COVID-19 pandemic represents a material change in circumstances. I purposely use the word could, because it could be argued that taking judicial notice of the impact of the COVID-19 pandemic must be based on evidence. Judicial notice dispenses with the need for proof of facts that are as notorious or generally accepted so not to be the subject of debate or that it is capable of an immediate and accurate demonstration by ‘resort[ing] to readily accessible sources of indisputable accuracy’ (S v Mantini 1990 (2) SACR 236 (E) and S v Leonards 1997 (1) SACR 307 (C)). This is particularly so where a person in custody has a medical condition that puts them at a higher risk of contracting COVID-19 in custody. Our courts in Magawu v S (NCK) (unreported case no CA&R28/2018, 2-10-2018) (Pakati J) and Keevy v S (FB) (unreported case no A66/2013, 2-4-2013) (Daffue J) at para 21 have decided on numerous occasions that poor health and a medical condition is not per se an exceptional circumstance or a new circumstance. Courts should also consider whether the time that has already elapsed has had or the anticipated passage of time will have an impact on the appropriateness or proportionality of the detention. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. Courts must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence they would serve if convicted.

The risk posed to detained persons from COVID-19 – as compared to being at home on house arrest – is a factor that must be considered in assessing the balancing factor as envisaged in s 60(9) of the Criminal Procedure Act 51 of 1977. I suspect that as this virus worsens, many more applications for bail will be seen. Persons who are presently incarcerated awaiting their trials will inevitably have their trials postponed due to the present health crisis. Some of the detained persons have already stated their intentions to go on a hunger strike. Caution must be exercised not to draw inferences or to speculate, based on very limited information, given the sweeping implications for all people in detention. An assumption about a greatly elevated risk essentially leads to an adverse finding without delving into the actual circumstances. A systemic failure to adequately care for and protect people in custody should not be assumed.

Principal 2

Second, as a factor affecting public safety under the grounds for detention at s 60(4)(e) of the Criminal Procedure Act 51 of 1977 (CPA), 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.

Detention is necessary to achieve the purpose of maintaining confidence in the administration of justice in the country. The greatly elevated risk posed to detained persons from COVID-19, as compared to being at home on house arrest is a factor that must be considered in assessing the second principal. I am not suggesting that the Department of Justice and Correctional Services cannot take appropriate steps to protect persons under their care. The practical reality is, the risks to a person’s health from COVID-19 in a confined space with many people, like a jail, is significantly greater than if a person can self-isolate at home. The practical reality is that the ability to practise social distancing and self-isolation is limited, if not impossible, in an institution where accused persons do not have single cells. Physical distancing in the true sense is simply not possible. One does not have to have been in jail to realise this. A jail is a government-enforced congregation of people, which is inherent in its very concept. When density and human contact are to be avoided, jail cannot be a safe place to be. No reasonable person expects detainees in custody to be coddled in luxury. However, people in our country held in custody by the state have the right to be held in safe and clean surroundings.

The impact the pandemic would have on an accused person’s time until trial is a relevant consideration. There are significant uncertainties about how long the COVID-19 crisis could affect the criminal justice system. Consequently, it would be naïve to think that it will be ‘business as usual’ when we all return to our so-called normal judicial duties.

It is in the interest of society as a whole, as well as the inmate population, that the release of persons who can be properly supervised outside the institutions should be permitted. It better protects those who must be housed in institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

Principal 3

Third, as a factor relevant to public confidence in the administration of justice under the detention at s 60(9) of the CPA, which states that ‘[i]n 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’.

The COVID-19 pandemic has introduced a new ground for bail application. This ground of bail is not based on an accused’s risk to the community or the importance of ensuring attendance in court. It is anchored exclusively in the perceptions of the public and the maintenance of confidence in the system of bail. The simple fact is that reasonable and informed members of the public would be wary of keeping alleged offenders in pre-trial custody for the sole purpose of advancing confidence in the system of justice. The dangers to the prison population – both to inmates and staff – posed by the risk of infection have changed the way we do things. The views and confidence of the public anchoring the foundation of this factor are not gauged by referendum but by judicial interpretation of societal norms. It is a matter of judicial discretion. A reasonable person test is to be used. The reasonable person test serves as a reminder to each presiding officer that their discretion is grounded in community values, and, in particular, long term community values. In short, the person in question is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values.

The conditions in which individuals awaiting trial are held must necessarily be understood within public confidence in criminal justice. Normally, a reasonable, informed, thoughtful member of the public would not be overly concerned with the impact of prison conditions in pre-trial custody. There is nothing ordinary about the COVID-19 crisis. These are extraordinary, dire times. The virus is highly contagious. People who contract the virus are at real risk of very serious illness or death. This is unquestionably a public emergency of a dimension not previously experienced in this country. One phrase can be heard loud and clear throughout the world today, namely, ‘social distancing’. This is the main tool advocated by public health professionals and politicians around the globe to fight against COVID-19. Exposure to the media demonstrates how the imperative social distancing is. All group activity, except out of absolute necessity, has ceased. The threat of COVID-19 must be fought head-on by keeping people apart from each other.


The public’s confidence in the criminal justice system has been significantly altered as a result of the pandemic. The public are deemed to be reasonable, informed and not without compassion for those in prison. I agree with the words of late President Nelson Mandela, ‘no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones’ (Johannesburg: Macdonald Purnell 1994).

People do not lose their humanity when they enter a jail, and those held in pre-trial custody are not convicted criminals. They are innocent until proven guilty.

I am aware that the COVID-19 crisis should not be treated as a ‘get out of jail free card’ or a ‘revolving door policy’ for offenders who commit crimes during the pandemic. Even in these very challenging times, judicial officers must fully recognise the potentially harmful health impact on detained persons in the various institutions, while at the same time exercising the balance required to sustain its fundamental role in the administration of justice and protection of the public. The health and safety of remand prisoners is the responsibility of prison officials. Those who pose a substantial risk to the safety of the public cannot be released on the basis that detention might pose a heightened health risk to them. COVID-19 is a factor but requires medical evidence of extra susceptibility.

An accused person will, in my opinion, have to adduce evidence, which shows the following facts of the COVID-19 pandemic while in custody. These factors are, however, not an exhaustive list and may radically change the more we learn about the COVID-19 pandemic. COVID-19 is a factor, but –

  • no differential risk perceived;
  • requires medical evidence of extra susceptibility;
  • could be outweighed by public-protection concerns;
  • limited to the (potential) impact on release-plan compliance;
  • could be offset by evidence of remand-institution response.

I hope this article will provide some guidance to colleagues and legal practitioners when dealing with the COVID-19 pandemic during bail proceedings.

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2020 (June) DR 17.

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