Recent Case: Criminal Procedure

• Jurisdiction: South Africa
• Citation: (1997) 10 SACJ 105
• Published date: 28 August 2019
• Author: Michael Cowling
• Pages: 105-114
• Date: 28 August 2019

Recent Cases • Vonnisse

105

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Bail

Bail

—cancellation—effects of

An inherent component of the bail process is the power conferred on a court to

cancel bail when conditions under which it was granted have not been

complied with. (This is regulated by s 66 of the Criminal Procedure Act 51 of

1977). In

S v Mabuza

1996 (2) SACR 239 (T) the accused was granted bail and

one of the conditions was that he should refrain from communicating with or

contacting certain state witnesses. Immediately after the proceedings he

allegedly threatened one of these witnesses with death. The state

subsequently applied for the cancellation of his bail.

This was granted by the court a quo which thereafter discovered that,

although the accused had been granted bail, he had not been released at that

stage. On review it was held (per De Villiers J) that a distinction should be

drawn between the granting of bail and the subsequent release of that accused

upon payment of bail (at 243

a— b).

In support of this the court cited s 58 of the

Criminal Procedure Act which stipulates that the effect of bail is that an

accused who is in custody shall be released from custody upon payment of

bail. From this it was deduced (at 243 c) that an accused can only be said to be

released on bail for purposes of s 66 once he has paid the bail and been

physically released. Consequently, the bail amount of R3 000 stood and the

accused was entitled to be released notwithstanding the death threat.

It is submitted that although the above decision might be sound in principle

it poses considerable practical problems as illustrated by

Mabuza's

case. The

effect of the decision is that there is nothing that the courts can do when

accused persons who have not yet been released on bail violate bail

conditions. Whether or not action in terms of s 66 (i e cancellation of bail)

could have been taken against him (once he had paid the money and been

(1997) 10 SACJ 105

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