A statute of liberty? The right to bail and a case for legislative reform

JurisdictionSouth Africa
Published date16 August 2019
Pages24-43
Date16 August 2019
AuthorClare Ballard
Citation(2012) 25 SACJ 24
A statute of liberty? The right to bail
and a case for legislative reform
CLARE BALLARD*
ABSTRACT
Thousands of accused persons in South Africa spend lengthy periods
of time i n remand dete ntion. The longer a remand det ainee is kept in
custody pending tr ial, the greater the in fringement is on his or her r ight to
liberty. Accordingly, the burden on t he State to justif y prolonged detention
becomes gre ater with the pas sage of t ime and the rea sons which initially
justif‌ied remand detention wi ll, at a certain point, no longer constitute
suff‌icient justif‌ication for the continued remand detention. South African
jurisprudence, compared to the European Court of Human Rights and other
international adjudicatory bodies, has not developed to the point where
courts interrogate the prosecution regarding the reasons for continued
detention and actively inquire into the status of the investigation. Moreover,
the legislat ive framework does not requi re that bail decisions be brought
before courts rep eatedly and at regular intervals. Automatic bail review
and maximum custody limits are i mportant legislative mechanisms that
would not only promote the robus t jurispr udential pro tection of the r ight
to libert y, but remedy the cur rent failure of t he Crimin al Procedure Act 51
of 1977 (CPA) to adequately protec t a remand de tainees’ right not to be
detained arbitra rily or without just cause.
1. Introduction
Every day thousands of crimina l suspects around the world are denied
bail, putting the global average of remand det ainees at approximately
three million.1 Although the remand detention rate in developing
countries is comparatively lower than it is in developed nations,2
remand detainees constitute a relatively high percentage of the prison
* BA (UCT), LLB (UCT), LLM (Cornell University). Currently a researcher at the
Community Law Centre (Civil Society Prison Reform Initiative), University of the
Western Cape.
1 D Berry ‘The socioeconomic impact of pre-trial detention: A global campaign for pre-
trial justice report’ (2011) Open Society Foundation and United Nations Development
Program publication, 15, available at http://www.soros.org/initiatives/justice/articles_
publications/publications/socioeconomic-impact-detention-20110201/socioeconomic-
impact-pretrial-detention-02012011.pdf, accessed on 2 March 2012.
2 The United States, for example, has the highest rate of imprisonment (743 per
100 000, the global average being 44 per 100 000). See Berry op cit (n1) 16.
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(2012) 25 SACJ 24
© Juta and Company (Pty) Ltd
population in the developing world.3 In some countries, for example,
over three-quar ters of all prisoners are rema nd detainees.4 Such
f‌igures indicate that remand detention is not considered an exceptional
measure or seen as a last resort, but is used as a standard practice and,
is explained below, often without suff‌icient justif‌ication.5
On 28 February 2011 the remand detainee population in South
Africa was 49 695,6 approximately 30% of t he total inmate population
and almost double the Department of Correctional Ser vices’ proposed
benchmark f‌igure of 25 000.7 In some correctional facilities where
overcrowding has reached a ‘critical level’,8 remand detainees account
for 52% of the inmate population.9 In addition to high rema nd
numbers, the lengthy period of detention that many remand detainees
are forced to suffer is also cause for concern. On 31 March 2010, more
than one th ird of remand detainees had spent three to six months i n
custody approximately 5000 had spent si x to nine months in cu stody,
almost 30 00 had spent 12 – 15 months in custody, and just less than
2000 had been in remand detention for more t han two years.10 Literally
thousands of people in South Africa spend long stretches of their lives
3 In 2003, the average length of pre-trial detention in 19 of the 25 European Union
member states was 167 days. In Nigeria, for example, the f‌igure is 3.7 years. See
Berry op cit (n1) at 15 citing A Nwapa ‘Building and sustaining change: Pretrial
detention reform in Nigeria’ in Justice Initiatives: Pretrial Detention (2008) Open
Society Institute at 86.
4 ‘This includes Liberia (where 97 percent of all prisoners are awaiting trial), Mali (89
percent), Benin (80 percent), Haiti (78 percent), Niger (c.76 percent), Bolivia (74
percent), and Congo-Brazzaville (c.70 percent).’ See Berry op cit (n1) at 16.
5 The ‘last resort’ principle is enunciated in Article 9, para [3] of the International
Covenant on Civil and Political Rights, which states:
‘It shall not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guar antees to appear for trial, at any other
stage of the judicial proceedings, and, should occasion arise, for execution of the
judgement.’
6 Statistics sourced from the Department of Correctional Ser vices Management
Information System, available at http://www.dcs.gov.za/WebStatistics, accessed on 2
March 2012. See also the Off‌ice of the Inspecting Judge DH van Zyl Annual Report
for the period 1 April 2009 – 31 March 2010 (2010) 13, which reported that in May
2010 there were 49 030 awaiting trial detainees. The 2009/2010 Annual Report for the
Department of Correctional Services (DCS), 16, reported the f‌igure to be 50 511 as of
31 March 2010.
7 Statistics sourced from Department of Correctional Services Management Information
System op cit (n6).
8 The Depar tment of Correctional Services Management Information System op cit
(n6) reports that correctional facilities are at 135.44% capacity. The 2009/2010 Annual
Report of the Judicial Inspectorate for Correctional Services op cit (n6) states that
certain correctional facilities exceed 200% capacity.
9 The 2009/2010 Annual Repor t of the Judicial Inspectorate for Correctional Services
op cit (n6) 13.
10 The 2009/2010 Annual Report for the Department of Correctional Services op cit (n6)
30.
A statute of liberty? The right to bail and a case for
legislative reform 25
© Juta and Company (Pty) Ltd

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