Bail- Chapter 9

1.

_____________________________________________________________

Section 60 is about the Bail Application. It is divided into 14 sub-sections. I will

deal with each sub-section below:

Sub Section 1 is divided into 3 paragraphs (a-c):

 In the First paragraph the primary statement of principle in the interim
Constitution is reaffirmed (section 25(2)(d)), namely that bail should be
granted unless the interests of justice indicate otherwise.

 Second paragraph affirms the jurisdiction retained by the court referring an

accused to another court. In cases where the court refers the accused to
another court for trial or sentencing, the referring court retains jurisdiction in
respect of bail until the accused appears in the other court for the first time.
Once the accused appears in the receiving court, the receiving court is
vested, to the exclusion of the transferring court, with exclusive jurisdiction in
respect of bail applications, unless the receiving court refers the matter back
to the transferring court for a bail application.
 In instances where it happens that the question of possible release is not
asked by either the accused/ prosecution, the third paragraph deals with the
courts powers in ascertaining from the accused whether or not he wishes
such question to be considered by the court.

Sub section 2 is divided into 4 paragraphs (a-d) which underline as a matter of

procedure the court's pro-active role in bail:
 The first paragraph gives court powers to postpone bail proceedings.
 In the Second and third paragraph, the court is expressly given the power to
receive informally data which are common cause and, regarding what is in
dispute, to receive evidence.
  Then the last paragraph, if ever the prosecution doesn’t oppose bail, the court
has powers to require the prosecutor to place on record reasons for not
opposing the bail application.

Sub section 2A obliges the court to look at a pre-trial services report, if one is
available, before granting bail.

Sub section 2B deals with the amount of money for bail:

 Here the court ought to determine what amount will compel the accused in the
circumstances to arrive at the trial rather than lose the bail money.
 In the determination of the amount the seriousness of the charge must be
taken into account. It is obvious that a serious charge with the prospect of a
heavy sentence is more likely to lead to flight than a relatively petty charge.
 Then the financial means of the accused are also of importance.
 The demand for payment of a sum can remove a means of escape from the
accused. But the amount must not be so great that it practically amounts to a
refusal of bail; in such cases bail may as well be openly refused.
 The purpose of the payment of the bail money is to secure the presence of
the accused. The judicial officer must consider whether the amount of bail, be
it large or small, will have any influence on the accused's decision to attend
court.
 Often the amount is irrelevant: the accused will attend or abscond whatever
the amount. If the judicial officer is satisfied that the accused will attend in any
event, a warning should be given rather than bail.
 Several people are in prison because they could not pay measly amounts of
bail. It is for that reason that sections 62(f) and 63A were introduced,
authorising supervision by a probation officer and an application by the head
of the prison to apply for the release of such persons.

Sub section 3 deals with the court's duty to obtain information:

 For instance in the case of S v Mpofana 1998 (1) SACR 40 (Tk) the accused
was refused bail because inter alia an identification parade had not yet been
[Page 911] held. In a renewed application, more than 30 days later, it
 appeared that still no identification parade had been held. On appeal, the
court held that the trial court should have made enquiries in terms of section
60(3) into the reasons why there had been no parade. The case was referred
back to the magistrate for that reason (at 47bc).
 In bail proceedings the court should not call witnesses under section 186 but
should order the parties to place the evidence before the court (S v Mdhluli
2020 (1) SACR 98 (LP)).

Sub section 4 deals with how the interest of justice does not permit granting of
a bail where one or more of the ff grounds are established:
 The first ground is 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. Whether it is sufficient cause for
refusal of bail will depend on the circumstances. For instance, In S v Patel
1970 (3) SA 565 (W) bail was refused because of the accused's previous
convictions and actions immediately prior to the application, which pointed to
a his tendency to commit a certain type of offence. This paragraph makes the
likelihood of the accused's endangering the safety of the public a relevant
factor in the bail application.
 The second ground is where there is the likelihood that the accused, if he or
she were released on bail, will attempt to evade his or her trial. (Flight Risk)
 The third one is 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;
 The fourth one refers to 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;
 And the last one 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.

Sub section Five, in considering whether the ground in subsection (4) (a) has been
established, contains factors (personal or general threat) that the court may take into
account. Paragraphs (a) to (g) mention practically every imaginable question which
can arise in the consideration of the question of endangering public safety;
paragraph (h) enlarges this further. In brief it can be said that the court must consider
all relevant considerations.
Sub section Six (flight risk), The legislature here provides a useful list of factors
which are relevant under this heading, such as attachment to a place (created by
family ties, possessions, work circumstances, and so forth), the nature and
seriousness of the crime charged, the weight of the case against the accused and
the accused's chances of evading the police successfully. However, they are and
remain mere indicators and every case must be decided on its own particular
circumstances. The fundamental principle is that respect for the freedom of the
subject demands that bail only be refused where there is a real danger that justice
will not be done. The court should always try to see whether suitable conditions will
make bail possible, rather than refuse bail.

Sub section 7 (Interference with witnesses or evidence), Again the subsection

serves as a useful summary of the law. As with all the other factors the legislature
has spelled out, the court must exercise sound judicial discretion taking into account
and weighing all the relevant factors. The risk of flight or interference with the police
investigation can be eliminated by appropriate conditions that will allow bail still to be
granted. Attempts to influence or intimidate state witnesses or to conceal or destroy
evidence are inherently serious factors which have to be taken into account.

Sub section 8, deals with instances undermining justice. With due respect to the
legislature, it does seem as if the well is now drying up. The factors mentioned here
probably arise seldom and are, in any event, clear enough. Be that as it may, judicial
officers now know that the entire spectrum of factors requires consideration.

Sub section 9 differs from all the other factors because it concerns not the
probable conduct of the accused, if he or she is freed, but the conduct of others. It is
difficult to accept that justice could require that an individual's freedom be sacrificed
because of events in which he or she has no part or even responsibility. In S v
Miselo 2002 (1) SACR 649 (C) bail was refused against the backdrop of taxi
violence. This factor concerns public order, peace and security, not discontent or
unpopularity. Demonstrations and even ministerial statements must be tolerated and
assessed according to their inherent value. Of course, releasing the accused could
put his or her safety at risk, but it must be a really unusual case that does not permit
of the tailoring of bail conditions to minimize this risk. The accused's own view in
such a case is important and refusal of bail is not appropriate unless there is a great
risk that the threat will prevent the accused's presence.

Subection 10 deals with considering the factors:

 Continued detention is clearly prejudicial to the accused and this subsection
mentions the most common causes. Paragraphs (a), (b) and (c) are often in
the spotlight. The lapse of time not only increases almost all the harm of
detention, but the Constitution guarantees in C 35(3)(d) a reasonably speedy
trial.
 What is more, extended detention of awaiting trial persons is undoubtedly
harmful to the community. It is important to note that the presence of one or
more circumstances against the granting of bail is not decisive.
 This subsection is overarching with regard to the factors mentioned in
subsection (4), which are elucidated in subsections (5) to (8A) and demand
that, after all the information has been gathered and assessed according to
relative value, a weighing up of interests takes place.
 Subsection (10) underlines that in each case the question whether bail should
be granted or not is a matter for the court to consider and decide, irrespective
of the prosecutor's attitude.

Subsections (11) and (11B) are, however, different in stature. The first is a
substantial diminution of the right to bail in serious and very serious offences; the
latter interferes with the right to silence. This sub section does not legitimise the
random incarceration of persons who are suspected of having committed Schedule 6
offences, who must be regarded as innocent until proved guilty:
 The first and second paragraphs deal with Exceptional circumstances.
  These two paragraphs, which must be read with Schedules 6 and 5
respectively, represent the gravamen of the legislature's intensified battle
against serious crimes. Bail applicants who are charged with offences
mentioned in these Schedules have an uphill battle, particularly those to
whom Schedule 6 applies.
 Schedule 6 contains a number of particularly serious offences, including
murder premeditated, planned of a peace officer performing his or her
functions as such, or of a witness in a Schedule 1 offence, or in the course of
the commission of armed robbery or rape. It also includes rape more than
once, or by a group, or of a complainant younger than 16 years, or of a
physically or mentally disabled person; robbery with a firearm; hijacking of a
motor vehicle; and indecent assault of a child younger than 16 years where
grievous bodily harm is inflicted.
 The last category is any Schedule 5 offence, or where a Schedule 5 offence
was committed while the accused was released on bail. Schedule 5 contains
various offences ranging from treason to fraud, corruption or forgery where
more than R500 000 is involved, and indecent assault of a child under 16
years.

Both paragraphs proceed from the point of view that bail is not granted unless the
accused offers evidence after a reasonable opportunity has been given.
 In paragraph (a) the court has to be convinced that there are exceptional
circumstances which permit the release of the accused in the interests of
justice.
 In paragraph (b) the accused need only convince the court that the interests
of justice permit his or her release. The onus is discharged on a balance of
probabilities.
 The exceptionality of the circumstances must be such as to persuade a court
that it would be in the interests of justice to grant bail.
 According to Dlamini this section does not say that the exceptional
circumstances have to be over and above, and different from, the factors in
section 60(4)(9). The court must see to it that the accused is given a
reasonable opportunity to indicate exceptional circumstances and, to that end,
 the accused must be adequately informed about what the case against him or
her is. The presiding officer must conduct an inquiry considering the
circumstances that are material to bail. In the absence of such an inquiry the
presiding officer has no authority to grant bail.
 The section may not, of course, be used as a punitive measure.

Certain circumstances have crystallized as indicators of exceptional

circumstances:
 Weak state case; One of the "exceptional circumstances" which the accused
can show is that there is no case against him or her or that there is serious
doubt whether that case will succeed (S v Maja and Others 1998 (2) SACR
677. Where there are, however, other compelling factors present, a weak
state case will not carry the day. If the state, confronted with oral evidence by
the accused, presents only an affidavit by the investigating officer questions
will arise about the strength of the state's case.
 Serious financial prejudice; Proof that the accused's business interests will
be seriously jeopardised by continued detention qualifies as an exceptional
circumstance which can be taken into account (contrary to what was held in S
v Mokgoje 1999 (1) SACR 233 (NC)).
 Compelling reasons of health; Proof by the accused that continued
detention will seriously prejudice his or her health may constitute an
excceptional circumstance for purposes of section 60(11). Evidence regarding
an alleged illness will have to be clear and preferably corroborated. Where the
case against the accused appears to be weak and the accused's medical
condition is not good, bail should be granted. Detention is not ideal for a
person in a weak physical position. The medical condition of the accused
must be weighed against the other factors and must not be considered in
isolation (S v Van Wyk 2005 (1) SACR 41 (SCA) par [9]).

Sub section 11B deals with previous convictions:

 The accused and his or her legal representative are, at the bail application,
obliged to disclose to the court previous convictions?
  In appropriate cases it is also in order to consider previous convictions as a
factor which illuminates the probability of flight (R v Swart 1923 NPD 133).
 The state may prove previous convictions because they are a relevant
consideration in deciding whether the accused can be trusted to show up at
the trial. Proving previous convictions is not prohibited by section 211,
because a bail application is not "criminal proceedings" (S v Hlongwa 1979 (4)
SA 112 (D) at 114E).

Sub section 13 deals with the Place and form of bail:

 The primary form of security which the legislature envisages is the deposit of
cash with one of the officials mentioned in subsection (13). The court can,
however, allow the furnishing of a guarantee with or without sureties.
 The amendment effected by Act 66 of 2008 makes it clear that the money can
be deposited at any magistrate's court or high court, as the case may be.
(Presumably this is lodged with the very same officials who are competent to
receive the money.)
 Section 72(1) allows release without security and without mentioning any
criteria. The intention throughout is to encourage release where the court has
in principle decided in favour thereof. It is particularly important in the case of
indigent accused for whom even a small amount may be out of reach.
 The magistrate who heard the formal bail application will ordinarily be
disqualified from hearing the subsequent trial.

Sub section 14 deals with the police docket:

 The uncertainty which existed in practice as to whether the accused was
entitled to the police docket for purposes of the bail application has been
removed by this provision: the accused is not entitled to the docket.
 Irrespective of the provisions of section 60(14) the prosecutor may be
instructed by the court in terms of section 60(11) to lift the veil in order to
afford the accused a reasonable opportunity of knowing what the case against
him or her is.
 2.

Section 63

Section 63 provide the necessary procedure for those instances where changed
circumstances require appropriate amendments to the conditions or amount of bail
fixed at an earlier stage.

This section makes it possible, on application by the prosecutor or the accused, for
the court to increase or reduce the bail amount and to amend or supplement the
other conditions. So, a reduction of the amount can be accompanied by more severe
conditions, or an increased amount by less severe conditions. The application must
then serve in the court before which the charge is pending.

Section 63 is meant to provide for instances where changed circumstances require

appropriate amendments, not for cases where legal representatives need the bail
money for their fees.

Any of the parties can initiate the amendment but, where the application is made by
the prosecutor, the accused has to be present. The section provides that, for this
purpose, a warrant for arrest may be issued by the court. It is submitted that notice
must first be given, preferably by means of service of the documents, and that arrest
is intended for a case where the accused, despite notice, does not appear or where
notice would frustrate the purpose of the application or is not possible for another
reason.
 3.

SECTION 67

Section 67 deals with the procedures and consequences of the non-attendance of an

accused who was on bail. It does not envisage a trial which can result in a conviction
and sentence. It has been said that the wording of s 67 'is peremptory and
mandatory. A court is compelled to withdraw bail and declare it provisionally forfeited
in terms of s 67 if an accused who is on bail fails to appear, or fails to remain in
attendance.

Failure to appear
The place, date and time at which the accused must appear should be noted on the
recognizance, and/or the court must at the time of the granting of bail state orally
when the accused should appear in court. The case will probably be postponed a
few times, but each time a new date must be determined and announced. The
recognizance or record of the proceedings will be prima facie proof that the accused
had knowledge of the date.

Procedure
If the accused fails to appear or to remain present during the trial, the court before
which the case is pending has to withdraw the bail and declare the bail money forfeit.
The court also has to issue a warrant for arrest of the accused. The court can direct
that execution of the warrant be stayed.

Generally, courts issuing warrants under this section direct that the warrant be held
over for 14 days. There are two possibilities:

First possibility:
 If the accused appears before court within 14 days of the issuing of the
warrant, he or she must be given an opportunity to prove that the default was
not due to any fault on his or her part. If the court is so convinced, the
 provisional cancellation and forfeiture of the bail lapse. According to the
wording of subsection (2) this is a proper evidentiary burden which has to be
proved on a balance of probabilities (S v Cronje 1983 (3) SA 739 (W)). It is
arguable that the burden now, in the light of constitutional norms, has to be
interpreted restrictively as merely a duty of rebuttal, by analogy with the view
of the majority in S v Manamela 2000 (5) BCLR 491 (CC), 2000 (3) SA 1
(CC).
 On the other hand it can be argued with more conviction that one is here not
concerned with the presumption of innocence and the risk of a guilty finding
despite the existence of reasonable doubt; one is concerned with an interim
arrangement. All the information about nonappearance falls within the
accused's knowledge. The accused can personally or through a legal
representative satisfy the court that the failure under section 67(1) was not the
fault of the accused.

Second possibility:
 If the accused does not appear within 14 days, the provisional cancellation
and forfeiture become final. Although according to paragraph (2)(c)
cancellation and forfeiture in these circumstances happen automatically, it is
general and healthy practice for the court nevertheless to make a formal
finding and order and to announce and record them.
 The court can hear evidence to prove that the accused is in default. The
harshness of this provision can be alleviated by extending the period of 14
days and a court ought to do so in order to avoid an injustice.
 Here S v Mudau 1999 (1) SACR 636 (W) provides a striking example of
circumstances in which extension should have been granted: the court knew
that the accused was in custody but ordered forfeiture nevertheless. In S v
Mudau the court on review set aside the forfeiture and ordered that bail be
repaid to the depositor. In S v Luzil 2018 (2) SACR 278 (WCC) the court held
that, where bail has been finally cancelled and forfeited, the court should,
upon the appearance of the accused, satisfy itself whether it is fair that the
final cancellation and forfeiture order stands (pars [10][12].
 Under section 70, the court has the power to remit the whole or part of the bail
money forfeited under section 66 or 67 (at par [10])).
 4.

SECTION 68

Cancellation of bail

This section was amended drastically in 1995 and again in 1997. Previously this
section
referred (both in its heading and text) only to flight, whereas the powers which it now
gives refer to a broad spectrum of circumstances. The ambit of these powers
appears from S v Kyriacou 2000 (2) SACR 734 (O).

The previous ground for cancellation is now given in paragraph (a) of subsection (1)
while paragraphs (1)(b) to (f) list various other grounds. Furthermore, the section
now includes the general ground, in (1)(g), namely the interests of justice.

Section 68 makes provision for two different procedures.

 In the ordinary course, where there is time to prepare papers and to bring an
application in open court where the charge is pending, subsection (1) is used.
The court is approached by means of a notice of motion. There has to be
information on oath to the effect that one or more of the factors in paragraphs
(a) to (g) is present. The section does not say who has to place the
information before the court, but in practice it will be the prosecutor. The
information can be given orally on oath from the witness box. Usually the
information will be given by a peace officer. The court can then issue a
warrant for arrest.

 Where this process is not feasible, the process of subsection (2) can be used.
This would probably indicate urgency, but other reasons for the extraordinary
process are possible, such as protecting the safety of the public or of
particular witnesses.

 Subsection (1) refers to an application in court; subsection (2), however,

refers to a "magistrate" who can issue the warrant and to a written statement
by a peace officer. The proceedings can therefore take place after closing
time and at any place on the strength of an affidavit of a peace officer. Nor
does the magistrate have to be the magistrate of the court before which the
case is pending; as a matter of fact, the case can be pending before a
regional court or a high court.

 The peace officer will have to give reasons for his or her belief. Although their
numbering differs, the grounds for cancellation listed in subsection (2) are
identical to those in subsection (1).
Connection to section 60

 The grounds that can lead to cancellation are related to the criteria considered
in terms of the new section 60(4) at the initial consideration of bail (S v
Kyriacou supra at 711ab). The broad guidelines are clear enough. As are the
substantive and procedural principles which also have to conform to the law
regarding bail in general.

 It is submitted that this section should be interpreted and applied so as to be

consonant with section 60 and the rest of Chapter 9.

 Two of the new considerations are especially important. The one is the
provision in paragraphs (1)(e) and (2)(b) to the effect that bail can be
cancelled if it comes to light that the accused did not disclose all previous
convictions.

 The other is that bail can be cancelled under (1)(f) and (1)(g) and (2)(c) and
(2)(d), if further evidence indicating that bail should not be granted comes to
light, which would include the fact that the accused gave false information at
the bail proceedings, or if cancellation is in the interests of justice.

Dual process
 The section gives the impression that cancellation of bail can take place
simultaneously with the issue of the warrant, but it is submitted that that is not
the intention. The warrant only serves to bring the accused to court;
consideration of cancellation takes place once the accused in in court.

Procedure
 The accused must be given an opportunity to reply to the allegation(s) as a
consequence of which his or her bail could be cancelled (S v Matitwane 2018
(1) SACR 209 (NWM)). The section is silent on the procedure to be followed;
the court will in its discretion and in consideration of the circumstances have
to decide in what manner to proceed. It may for instance be necessary to
allow crossexamination. The court will determine the procedure aware of the
fact that this is a unique, interlocutory, urgent, relatively informal and
somewhat inquisitorial process.

Onus
 The section is silent on onus and it is submitted that the general
considerations which were discussed under section 60 also apply here,
namely that the quasi-inquisitorial nature of the proceedings actually make
reference to an onus inappropriate.
  If the court is of the view that the administration of justice can be frustrated if
the accused remains free, bail can be cancelled and the accused detained
until the trial has been completed.

Forfeiture of bail money

 In contrast to section 67 nothing is said here of forfeiture of bail money and
there is in principle no reason why the bail money should not be refunded in
the interim.

Cancellation pending appeal

 The expression "is about to evade justice" was considered in Allie v De Vries
NO en 'n Ander 1982 (1) SA 774 (T). The magistrate granted bail pending
appeal and then cancelled it under section 68 after the accused had already
absconded. The high court decided that the magistrate had acted correctly,
that the accused should not have been freed and that section 68 applies to
bail pending appeal.

Exemption of bail
 As was pointed out in the commentary at section 60, the present section
contains the only mechanism for a surety to be exempted from the obligation
(Da Costa v Magistrate, Windhoek 1983 (2) SA 732 (SWA)).

Reinstatement of bail
 The court's decision in terms of section 68 is appealable (Nqumashe v S
[2001] 4 All SA 471 (NC); S v Nqumashe 2001 (2) SACR 310 (NC)).

 There is also a possibility of changing the magistrate's decision in terms of

subsection (2), by virtue of the reinstatement of bail by the court before which
the charge is pending. The case can be pending in the magistrate's court, the
regional court or a high court. Each of the three courts will have this power of
review regarding the magistrate's decision. Even under subsection (1) it is
arguable that the court can later reconsider the cancellation order.