SERIESAPCOF RESEARCH SERIES201823May 2018APCOFRESEARCH PAPERSTUDY ON THE USE OF BAIL IN SOUTH AFRICANicola de Ruiter and Kathleen Hardy
APCOF Research Paper 23: Study on the use of bail In South Africa1EXECUTIVE SUMMARYIn 2015, a Baseline Study was undertaken to measure South Africa’s remand system against the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines) of the African Commission on Human and Peoples’ Rights (African Commission). The Study identified various challenges in relation to the use and provision of bail and recommended that a further study be undertaken to understand the practical barriers encountered.This report follows the Baseline Study and past research. It reviews current bail practices against the legal framework. Through semi-structured interviews with relevant experts and stakeholders, gaps and challenges in the way bail is used are identified. A number of findings are made, together with proposed recommendations for strengthening the practice and use of bail in South Africa.South Africa has a comprehensive legal framework that is largely aligned to the Luanda Guidelines and related human rights norms and standards. Various legislative provisions recognise the fundamental rights of detained persons and provide for alternatives to remand detention.Despite these provisions, there appears to be a general unwillingness to grant bail, particularly by the South African Police Service (SAPS), resulting in rights violations and inefficiencies in the criminal justice system.This report finds that alternatives to remand detention are simply not used across the criminal justice sector. Some of the reasons why alternatives are not used include corruption, lack of knowledge of the legal framework, performance targets and rewards, and community perceptions of crime and violence and the resultant public pressure placed on the criminal justice sector. Ultimately, a long-term intervention is recommended in order to shift the mindset and the perception of measures, within communities and the sector, and thereby successfully reduce crime and keep communities safe. Such an intervention would address the root cause for the underutilisation of alternatives to remand detention. In addition, a long-term intervention supported by legislative reform, a review of performance targets, and the review (with the possible reintroduction) of pre-trial services will address some of the practical challenges in the use of bail.
APCOF Research Series 201821. INTRODUCTION AND BRIEF HISTORY OF BAIL IN SOUTH AFRICA1.1 IntroductionThe United Nations (UN) Secretary-General has highlighted the excessive use and length of pre-trial detention as one of the major causes of prison overcrowding. Shortcomings in criminal justice procedures, including the lack of legal aid, a shortage of judges, inadequate investigations and the loss of case files, and pressure from the media and public opinion to tackle insecurity by imprisoning offenders, were identified as dominant causes for high rates of pre-trial detention globally.