Ntontela Treatise Final Draft PDF

THE INTERESTS OF JUSTICE IN BAIL
PROCEEDINGS
M NTONTELA
2019
i
THE INTERESTS OF JUSTICE IN BAIL PROCEEDINGS
by
MAHLUBANDILE NTONTELA
Submitted in partial fulfilment of the requirements for

the degree of Master of Laws to be awarded at the
Nelson Mandela University
April 2019
Supervisor: Prof. Deon Erasmus
ii
DECLARATION
I, Mahlubandile Ntontela 208066436, hereby declare that the treatise for Master of Laws
is my own work and that it has not previously been submitted for assessment or
completion of any postgraduate qualification to another University or for another
qualification.
………………………….
Mahlubandile Ntontela
iii
ACKNOWLEDGMENTS
To the Giver of life, thank you for the time, opportunity and preserving me in the
preparation of this treaties.
To my Supervisor, Prof. Deon Erasmus thank you for the continued patience, support
and guidance.
To my wife, Nwabisa Ncaza and my son Yibanathinkosi, I will forever be grateful to God
for your presence in my life.
iv
TABLE OF CONTENTS
PAGE
DECLARATION i
TABLE OF CONTENTS iii
SUMMARY vi
CHAPTER 1: INTRODUCTION AND OVERVIEW OF THE STUDY 1
11 Introduction 1
12 Overview of the study 2
13 Research methodology 2
14 Outline of chapters 2
CHAPTER 2: THE DEVELOPMENT OF THE CONCEPT “INTERESTS
OF JUSTICE” IN BAIL PROCEEDINGS 4
21 Introduction 4
22 Interests of justice in bail applications under common law 4
23 The Constitution of the Republic of South Africa, 1994 (the interim
Constitution) 6
24 The Constitution of the Republic of South Africa, 1996 (the
Constitution)
7
241 Section 12(1)(a) 7
242 Section 35(1)(f) 8
25 Legislative Amendments 9
26 Constitutional challenge to the amendments 11
261 Introduction to the discussion of S v Dlamini 11
262 The (relevant) challenged provisions 12
2 6 2 (i) Separation of powers 12
2 6 2 (ii) The preventive measures and the interests of justice 13
v
2 6 2 (iii) Frustrating the right to bail 14
2 6 2 (iv) Reverse onus provisions 14
27 Conclusion 16
CHAPTER 3: INTERESTS OF JUSTICE IN BAIL PROCEEDINGS 17
31 Introduction 17
32 Interpretation of the interests of justice concept 17
33 Interests of justice in section 60 19
34 Committing of further offences 23
35 Flight risk and evading trial 23
36 Attempt to interfere with the state’s case 25
37 Jeopardising the criminal justice system 26
38 Disturbing the public order 27
39 Interests of justice versus personal circumstances of the accused 28
3 10 The right to freedom of the person and the interests of justice 29
3 11 Conclusion 32
CHAPTER 4: COURTS AND THE INTERESTS OF JUSTICE 33
41 Introduction 33
42 Role of the courts 33
43 Standard by which courts are to carry their roles 36
44 Conclusion 37
CHAPTER 5: ONUS PROVISIONS AND THE INTERESTS OF JUSTICE 39
51 Introduction 39
52 Onus provisions prior to the amendments 39
vi
53 The onus, interests of justice and the prima facie case 40
54 Applicable schedules in determining an onus 41
541 (i) Schedule 1 41
542 (ii) Schedules 5 and 6 42
55 Section 60(11)(a) and (b) 43
551 Section 60(11)(a) 43
552 Section 60(11)(b) 43
56 Interpretation of section 60(11) 43
57 Criticism against section 60(11) 44
58 Conclusion 46
CHAPTER 6: CONCLUSION 47
61 Conclusion 47
TABLE OF STATUTES 50
TABLE OF CASES 50
BIBLIOGRAPHY 53
vii
Summary
Bail in the South African context is a very contentious issue. Over the years, courts have
had to develop principles for the purposes of granting or refusing bail. The interim
Constitution of 1994 placed an onus on the State to adduce evidence that interests of
justice justified the accused’s incarceration pending trial. After the escalation of crime in
the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles
as to what would constitute interests of justice in bail proceedings. These principles did
not differ much from what the courts had developed over the years leading to the
constitutional dispensation. The inquisitorial nature of the bail proceedings was further
entrenched by the amendments as they tasked the courts to determine what would be in
the interests of justice in every bail enquiry.
The legislative amendments further introduced what was termed the reverse onus
provisions which were heavily criticised at the time of their introduction. These provisions
placed an onus on the accused to adduce evidence to satisfy the courts that the interests
of justice were in favour of their release in serious offences, and further adduce
exceptional circumstances in respect of very serious offences.
It is argued in this research that, despite the development and the codification of the
interests of justice concept over the years, the duty of the courts to uphold the
constitutional values should not be neglected by the courts when determining what would
be in the interests of justice in bail proceedings. The standard by which the courts are to
uphold the concept of interests of justice in bail proceedings should reflect the task that
has been placed on the courts and not on the parties to the proceedings, when reaching
a just and equitable decision in bail proceedings.
viii
CHAPTER 1
INTRODUCTION AND OVERVIEW OF THE STUDY
1 1 Introduction
Bail as a cornerstone of one of pre-trial rights has long been recognised as a very
important ambit of the South African criminal justice system. Dating back from English
law, from which South Africa obtained the foundations of its criminal procedure and
evidence principles, the legislation prior to the Constitution gave effect only to the
substance of the right to apply for bail, without laying down mechanisms in which that
right was to be enforced. As a result, courts over the years had to lay down and develop
principles to guide the courts as to what is to be considered when dealing with bail
applications.1
Until the introduction of the legislative amendments in 1996 and 1997, the concept of the
interests of justice in bail proceedings was not elaborated upon in the statutes.2 The
legislative amendments further introduced onus provisions. However, the legislative
amendments governing interests of justice in bail proceeding were met with some
resistance from authors and litigators when they came into effect.3 When introduced, they
were criticised for being harsh on bail applicants.4 Consequently, the various provisions
of section 60 of the Criminal Procedure Act5 were challenged on the basis of their
constitutionality. The Constitutional Court found the impugned provision constitutional
and also highlighted the role of the courts in interpreting the said provisions.6 This treatise
will examine how the interests of justice concept has developed under the bail
1 S v Hlopane 1990 (1) SA 239 (O) 242D.

2 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (7) BCLR 771 (CC) par [9].
3 Ndlovu “Mixed reactions about bail new law” December 1998 371 De Rebus 21.
4 See fn 2 above.
5 51 of 1977.
6 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra par [4].
1
jurisprudence. It will further examine the role of the courts in striking a balance between
the interests of society and the rights of the accused person.
1 2 Objective of the study
The aim of the study was to critically analyse the role of the courts in interpreting the
provisions governing the interests of justice in bail proceedings.
1 3 Research methodology
The researcher examined the legislative framework governing bail proceedings. In the
interpretation of this legislative framework, case law was referred to extensively and the
views of relevant authors, obtained from articles obtained via legal search engines such
as Juta, LexisNexis and HeinOnline, were examined.
1 4 Outline of chapters
Chapter Two deals with how the courts, over the years leading to the constitutional
dispensation, formulated guiding principles as to what would be in the interests of justice
in bail proceedings. In this chapter the legislative development of the term ‘interests of
justice’ will be discussed with reference to in the interim and final Constitutions.
Chapter Three evaluates the provisions of section 60 of the Criminal Procedure Act. A
discussion of the legislative provisions relating to interests of justice in bail proceedings
is set out. This chapter also evaluates how the legislative developments relating to
interests of justice in bail proceedings have affected the right to freedom of a person.
Chapter Four discusses the role of the courts in exercising their discretion when dealing
with the guiding principles as to what would be in the interests of justice in bail
proceedings.
2
Chapter Five considers how the onus provisions have affected the determination of
interests of justice in bail proceedings.
In Chapter Six the research is summarised and conclusions are drawn.
3
CHAPTER 2
THE DEVELOPMENT OF THE CONCEPT ‘’INTERESTS OF JUSTICE’’

IN BAIL PROCEEDINGS
2 1 Introduction
Because history had taught its citizens the value of freedom and security, including the
right to bail, it was not surprising that these were taken up as fundamental rights
provisions in the Constitution of the Republic of South Africa7 (the interim Constitution).8
However, the time lag between the dismantling of the old South African system and the
construction of the new proved to be a breeding ground for crime, which escalated
dramatically between 1994 and 1996.9 This led to serious debates among legal scholars
and uncoordinated pronouncements by the High Courts.10 Eventually a watered down
right to bail in the Constitution of the Republic of South Africa,1996, (hereinafter referred
to as the Constitution) and the amendments to the Criminal Procedure Act was
introduced.11
2 2 Interests of justice in bail applications under common law
The basis for the interests of justice principle under bail proceedings has largely been
shaped by the courts under the South African bail jurisprudence. Consequently, courts
over the years have set out principles to be taken into account when considering whether
7 200 of 1993.
8 De Villiers “Problematic aspects with regard to bail under South African Law: The reverse onus
provisions and the admission of the evidence of the applicant for bail at the later criminal trial revisited”
2015 1 International Journal of Law, Crime and Justice 17 17.
9 Scharf and Tshehla “Stumbling at the First Step – Lost Opportunity in the Transformation of the South
African Justice System” 2003 1 Acta Juridica 160 161.
10 De Villiers 2015 1 International Journal of Law, Crime and Justice 18.
11 Criminal Procedure Second Amendment Act 75 of 1995; Criminal Procedure Second Amendment Act
85 of 1997.
4
or it would be in the interests of justice that the applicant be released on bail. According
to Du Toit et al,12 the courts had one question which had to be answered, namely, whether
the interests of justice would be prejudiced if the accused were released on bail.
There were four questions to be asked, namely, would the accused stand trial upon
release; would the accused interfere with witnesses; would the accused commit further
crimes and would the release be prejudicial to the maintenance of law and order and the
security of the state.13 The general principles of regarding the grant of bail were that the
courts were governed by the foundational principle to uphold the interests of justice.14
Court would always grant bail where possible, provided the interests of justice would not
be prejudiced.15
In the case of S v Pineiro and Others16 the applicants were citizens of Spain and had
brought a bail application after being charged with contravening the provisions of the Sea
Fisheries Act.17 Frank J outlined the principles which courts followed in a bail application
at the time. These were whether the applicant would stand trial, would interfere with the
witnesses or investigation, would commit further crimes and whether the release would
be prejudicial to the maintenance of law and order and the security of the state. He added
a fifth point, namely, whether any objections to bail might be accommodated by means of
bail conditions.18 The principles referred to in S v Pineiro and Others19 were later amplified
in S v Acheson.20 In this matter, the State opposed the bail application on the basis that
the applicant would not stand his trial if released on bail, as he was an Irish citizen. The
court identified three considerations which were taken into account in deciding whether
12 Du Toit “Bail” in Commentary on the Criminal Procedure Act (2018) 22.

13 Matshoba Bail and the presumption of innocence: A critical analysis of Section 60(1–11) of the Criminal
Procedure Act 51 of 1977 (Unpublished masters treatise, University of Western Cape 2012) 14.
14 S v Smith 1969 (4) SA 175 (N) 177 E–F.
15 Ibid.
16 1992 (1) SACR 580 (Nm) 580G.
17 58 of 1973.
18 See fn 16 above.
19 See fn 15 above.
20 1991 (2) SA 805 (Nm) 821E–823E.
5
there was prejudice to the interests of justice. The first consideration dealt with how deep
were his emotional, occupational and family roots within the country where he was to
stand trial; how severe was the punishment likely to be if he was found guilty; how
stringent were the conditions of his bail and how difficult would it be for him to evade
effective policing of his movements. Regarding the second consideration, the court held
that the paramount issue was a reasonable likelihood that the accused would tamper with
witnesses or evidence if he were released. The court even went further to mention factors
which would have to be taken into account under this second consideration. On the third
consideration the court was concerned with the prejudice to the accused if bail were
denied. The court asserted that the following issues needed to be examined: the time that
the accused person had already spent, and would continue to spend in custody before
the completion of the matter; what had delayed the matter and whether the accused was
to be blamed for that; the accused’s financial obligations; the prejudice it would cause to
prepare for his defence should bail not be granted; and the health of the accused.21
Once the court had taken regard of the four considerations, it took cognisance of the
objections to bail.22 The purpose of giving consideration to the objections to bail was to
find out whether or not the objections might be accommodated by conditions.23
2 3 The Constitution of the Republic of South Africa (the interim Constitution)
The term interests of justice was mentioned in the statute books for the first time with
reference to bail proceedings, in section 25(2)(d) of the Constitution of the Republic of
South Africa24 (interim Constitution). Section 25(2)(d) provided that every person arrested
for the alleged commission of an offence had, in addition to the rights which he or she
had as a detained person, the right to be released with or without bail, unless the interests
21 S v Acheson supra 822B–823C.

22 Matshoba Bail and the presumption of innocence: A critical analysis of Section 60(1–11) of the Criminal
Procedure Act 51 of 1977 15.
23 Ibid.
24 200 of 1993.
6
of justice required otherwise.25 The courts would ordinarily grant bail to an accused
person unless this was likely to prejudice the ends of justice.26
The reading of section 25(2)(d) the Constitution of the Republic of South Africa27 (interim
Constitution) meant that the accused ought to be released unless the interests of justice
dictated otherwise. The Constitution of the Republic of South Africa 28 (the interim
Constitution) did not define the term interests of justice.29 The court in S v De Kock30 held
that the phrase interests of justice, entailed in section 25(2)(d) of Constitution of the
Republic of South Africa31 (the interim Constitution), meant no more than the usual factors
which were taken into account in bail applications.
2 4 The Constitution of the Republic of South Africa 1996 (the Constitution)
In the context of this discussion, for purposes of bail applications, the Constitution grants
comprehensive protection of the right to freedom in sections 12 and 35(1)(f).
2 4 1 Section 12(1)(a)
Section 12(1)(a) of the Constitution32 states that a person cannot be deprived of his or
her freedom arbitrarily or without just cause. This right, crafted in general terms, is quite
obviously at risk in the specific instance of remand detention and the bail process linked
to it.33 The arbitrariness inquiry, a two-stage process, addresses, firstly, whether the
deprivation has a source in law.34 The second stage concerns the relationship of the
deprivation to a legitimate government purpose, for even if a deprivation is authorised by
25 Ibid.
26 S v Acheson supra 822A–B.
27 See fn 24 above.
28 Ibid.
29 S v De Kock 1995 (1) SACR 299 (T) 308E–F.
30 Ibid.
31 200 of 1993.
32 Of the Republic of South Africa, 1996.
33 Ballard “A statute of liberty? The right to bail and a case for legislative reform” 2012 25 SACJ 24 26.
34 Ballard 2012 25 SACJ 28.
7
law, if it fails to serve a legitimate purpose, it is arbitrary35 The initial denial of bail, if based
on the reasons set out in section 60(4) of the CPA, is, controversially, not an arbitrary
deprivation. Not only is the deprivation of freedom based on a source in law, but it serves
the legitimate state interests of protecting the public and safeguarding the integrity of the
trial process and criminal justice system.36
Just cause refers to the reasons justifying the deprivation of freedom. The court in De
Lange v Smuts NO And Others37 found that there was a second source of substantive
protection afforded by section 12, namely that, apart from the rational connection, the
purpose of, reason for or cause of the deprivation of freedom had to be just. However,
Ackermann J was not prepared to set out a comprehensive test.38 The court held that it
is not possible to attempt, in advance, a comprehensive definition of what would constitute
just cause for the deprivation of freedom in all imaginable circumstances.39
2 4 2 Section 35(1)(f).
Section 35(1)(f) of the Constitution40 entails that every arrested person (for allegedly
committing an offence) has the right to be released from custody, with reasonable
conditions, provided the interests of justice permit such release.
Section 35(1)(f) in its context, makes three things plain.41 The first is that the Constitution
expressly acknowledges and sanctions that people may be arrested for allegedly having
committed offences, and may for that reason be detained in custody.42 The Constitution
itself therefore places a limitation on the right to as protected by section 12.43 The second
is that, notwithstanding lawful arrest, the person concerned has a right, but a
35 De Lange v Smuts NO 1998 (3) SA 785 (CC) par [23].

37 De Lange v Smuts NO 1998 (7) BCLR 779 (CC) par [31].
38 De Lange v Smuts NO supra par [30].
39 Ibid.
42 Ibid.
43 Of the Republic of South Africa.
8
circumscribed one, to be released from custody subject to reasonable conditions.44 The
third basic proposition flows from the second, and is the one that sets the normative
pattern for the law of bail, which is that the criterion for release is whether the interests of
justice permit it.45 The Constitutional Court has noted that section 35(1)(f) postulates a
judicial evaluation of different factors that make up the criterion of the interests of justice,
and that the basic objective traditionally ascribed to the institution of bail, namely to
maximise personal freedom, fits snugly into the normative system of the Bill of Rights.46
Section 35(1)(f) fits in with the system of the Bill of Rights in that, every time courts are to
interpret the rights in the Constitution, they are called to interpret them to promote the
values enshrined in the Constitution.
Prior to S v Dlamini,47 there had been a debate as to whether the section also deals with
procedural aspects of bail proceedings or not. In S v Mbele and Another48 it was held that
the view that section 35(1)(f)49 deals only with substantive issues and is neutral as to
matters of procedure cannot be sustained. The Constitutional Court in S v Dlamini also
acknowledged the procedural implications of section 35(1)(f) though further noted in
passing that the section is now more neutral than its predecessor.50
2 5 Legislative amendments
Prior to the amendment of bail provisions in the CPA, the statutory provisions were largely
restricted to the procedural requirements for bail.51 No guidance was provided to a court
regarding what it ought to consider in determining whether bail should be granted.52 The
democratic order in South Africa, in which individual freedom is specifically protected by
44 Du Toit in Commentary on the Criminal Procedure Act 3.

45 Ibid.
48 1996 (1) SACR 212 (W) 237F–G.
49 Constitution of the Republic of South Africa, 1996.
51 Omar “The unfair assessment of flight risk in bail hearings” 2016 57 SA Crime Quarterly 27 28.
52 Ibid.
9
a justiciable Bill of Rights, brought the question of the granting of bail to the fore. With the
inclusion of these amendments into the statute books, many authors criticised the
legislature of an attack on some of the constitutionally guaranteed rights of the accused,
all in the name of necessary crime control mechanisms.53
Bail provisions were revised extensively by the Criminal Procedure Amendment Act 54
which came into operation on 21 September 1995. The main purpose of this Act was to
clarify certain procedural matters and to make it more difficult for some accused to obtain
bail. An attempt was also made to codify the factors which the court should take into
account in considering a bail application.55
Bail provisions were again revised extensively by the Criminal Procedure Second
Amendment Act 85 of 1997 as amended by the Judicial Matters Amendment Act.56 Both
these Acts came into operation on 1 August 1998. Any confusion that had reigned since
the inception of the 1993 Constitution was clarified by the legislature in 1995. This was
enacted through amendment of section 60 of the CPA to fit with the constitutional norm,
expressed in section 25(2)(d) of the Constitution57 (the interim Constitution).58 In the
amended section, the legislature did not set a numerus clausus of instances defining
interests of justice but left the list open-ended to allow room for judicial interpretation.59 It
entrenched the norm that presiding officers must conduct themselves in a more
inquisitorial fashion and spelt out the criteria for dealing with bail applications60. This is
evident in the inclusion of section 60(3) of the Criminal Procedure Act61 which states that
a court may call for further evidence if it does not have enough information to make a
53 Steyn “Pre-Trial detention: Its impact on crime and human rights in South Africa” 2000 4 Law,
Democracy and Development 209 210.
54 75 of 1995.
55 Du Toit in Commentary on the Criminal Procedure Act 1.
56 34 of 1998.
57 200 of 1993.
58 Steyn 2000 4 Law, Democracy and Development 213.
59 Ibid.
61 51 of 1977.
10
decision in bail applications. The 1995 amendments were considered to be good law by
some academics,62 in that they provided protection to all, including victims and witnesses,
but others severely criticised the amendments, the main objection being that they made
it more difficult and, in fact, almost impossible for the arrested person to be granted bail.63
Some authors have argued that the amendments have led to thousands of accused
persons spending long periods of time in remand detention.64 The legislative activity of
the said amendments also meant that the approach to bail pending an appeal in respect
of certain serious offences became less lenient and less liberty-orientated.65
The 1995 legislation also introduced subsection 60(11) of the Criminal Procedure Act.66
This new subsection sparked controversy because it created a reverse onus whereby
accused persons were required to satisfy the court, in cases in which a Schedule 5
offence had been committed or a Schedule 1 offence had been re-committed whilst they
were out on bail, to convince the court that the interests of justice did not require their
detention.67
2 6 Constitutional challenge to the amendments
2 6 1 Introduction to the discussion of S v Dlamini68
In the judgment, the Constitutional Court dealt with four separate cases, and each of the
cases raised questions relating to bail proceedings. Prior to the Dlamini case, bail
jurisprudence had always recognised the general principle of the presumption of
innocence as a substantive principle of fundamental justice and had protected the
62 See fn 66 above.
63 Bursey “Time for return to sanity” 1999 380 De Rebus 33.
65 S v Scott-Crossley 2007 (2) SACR 470 (SCA) par [6].
66 51 of 1977.
67 S 60(11)(b) of the Criminal Procedure Act 51 of 1977.
68 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (7) BCLR 771 (CC).
11
fundamental rights of freedom and human dignity of any person accused by the state of
committing a crime.69
The Court noted in its introduction that the aim of the judgment was to show that the
application of constitutional norms to the law and practice of bail does not complicate the
task of judicial officers but clarifies it.70 The Constitutional Court in its judgment, was to
further portray how the relevant statutory provisions were to be harmonised with the
constitutional norms.71
Some have argued that this textual review of bail in South Africa’s criminal procedure was
an important one in outlining the legal framework within which the application of bail
should operate.72 The bail provisions, as amended, were generally constitutionally
endorsed, although the provisions were not individually tested.73
2 6 2 The (relevant) challenged provisions
(i) Separation of powers
The first issue the Court had to address regarding the impugned provisions was whether
sections 60(4)–(9) offended the separation of powers principle,74 as was held in S v
Schietekat75 and the S v Joubert76 cases. Regarding these provisions the Court held there
was nothing new in the criteria set out in those paragraphs.77 Another aspect raised by
the Court was that the provisions were not meant to be deeming provisions.78 As a court
may take factors into account beyond the listed factors, even if it does find criteria which
could tilt the scales against the granting of bail, it must ultimately make its own
evaluation.79 Consequently, such guidelines constitute no interference by the legislature
69 S v Fourie (1973) 1 SA 100 (D) 102H.

71 Ibid.
72 Omar 2016 57 SA Crime Quarterly 28.
73 Ibid.
76 Ibid.
12
in the exercise of the judiciary's adjudicative function, but rather constitute a proper
exercise by the legislature of its functions, including the power and responsibility to afford
the judiciary guidance where it regards it as necessary.80
(ii) The preventive measures and the interests of justice
There was another challenge to the constitutionality with regard to section 60(4)–(9). The
validity of these sections was challenged on the basis that they allow preventive
detention, which is constitutionally impermissible.81 In other words, what the Court had to
address was whether the impugned provisions measured up to the norms in section
35(1)(f) of the Constitution.82 The Court started by examining section 35(1)(f) of the
Constitution and concluded that preventative measures in the impugned provisions did
not introduce anything new. The Court held that the Constitution itself entails that, unless
there is sufficient material to establish that the interests of justice do permit the detainee's
release, his or her detention continues.83
Section 35(1)(f) (read with the general limitations clause in section 36) of the Constitution,
which includes the caveat that release is contingent on the interests of justice, implicitly
recognises that the continued detention of a person suspected of having committed an
offence may be a justifiable limitation on an accused’s right to freedom.84 In emphasising
this aspect, the Court reminded us that the Constitution does not create an unqualified
right to personal freedom and that it is inherent in the wording of section 35(1)(f) that the
Bill of Rights contemplates and sanctions the temporary deprivation of freedom required
to bring a person suspected of an offence before a court of law.85

82 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra par [51]
13
(iii) Frustrating the right to bail
One argument which was brought forward by the accused in the case of S v Dladla and
S v Schitekat was that these provisions turned their focus away from the accused to rather
focus on other persons, such as the members of the public.86 Whilst the Court
acknowledged it would be disturbing if an individual's legitimate interests should so
invasively be subjected to societal interests,87 the Court in its consideration of the
constitutionality of subsections 60(4)(e) and (8A) of the CPA, held that the provisions do
prima facie infringe upon an accused’s right to be released on reasonable conditions, but
that the provisions pass constitutional muster through the application of the limitation
clause.88 The Court held that the limitation of the right is narrowly tailored to achieve the
compelling interests in maintaining public peace, and meets the requirement of
proportionality between this purpose and the nature of the right.89 The Court regarded the
prevalence of crime in this country and the public's response as sufficient reasons for
limiting the accused's right to be released before trial.90 It is interesting to note is the Court
followed the same approach in the case of S v Makwanyane,91 where it held that public
opinion should not be used as a constitutional yardstick in a democratic society. Public
opinion may have some relevance to the enquiry; however it should not substitute the
duty vested in the courts to interpret the Constitution and to uphold its provisions without
fear or favour.92 The Court further held that the Constitution exists so as to protect
minorities from the whims of public opinion.93
(iv) Reverse onus provisions
As to the reverse onus provisions, none of the applicants suggested that the imposition
of a reverse onus on an applicant for bail was constitutionally objectionable.94 Kriegler J,

90 Steyn 2000 4 Law Democracy and Development 217.
91 1995 (2) SA 391 (CC) par [88].
92 Ibid.
93 Ibid.
14
in delivering the judgement on behalf of the unanimous Court, indicated that such a
contention would in any case not have been sustained.95 Referring to section 35(1)(f) of
the Constitution,96 Kriegler J indicated that section 60(11)(a) did not create something
new with regard to onus that had not existed before.97 The Court held that section 35(1)(f)
established that, unless the equilibrium is displaced, an arrested person is not entitled to
be released. Section 35(1)(f) therefore inherently sanctions the loss of freedom required
to bring a person suspected of an offence before a court of law. If one agrees with the
Court’s view, one may argue that the reverse onus provisions in section 60(11) survive
constitutional scrutiny on this basis alone.98
It is noteworthy that, in the course of its analysis, the Court did not draw upon its extensive
limitations jurisprudence in general, or its numerous reverse onus cases in particular, for
guidance.99 The Court had previously repeatedly emphasised that, it was for the party
relying on the legislation to establish justification, and not for the party challenging it to
show that it was not justified.100 The Court relied on the fact that past experience had
shown that, when criminal ringleaders are in custody, crime tends to subside.101
Although the Court acknowledged that the primary purpose of the bail system was to
protect the investigation and prevent obstacles to the prosecution’s cases pending trial.
It described the statute's clear and indubitably important purpose as to deter and control
serious crime.102 It is submitted with respect that the court confused issues in this
instance. First, it is not the primary purpose of the bail system to deter other would-be
offenders. That is usually done during sentencing proceedings. When the court in S v
95 Ibid.
98 Currie and De Waal The Bill of Rights Handbook 6ed (2013) 781.
99 Axam “If the Interests of Justice Permit: Individual Liberty, the Limitations Clause, and the Qualified
Constitutional Right to Bail’’ 2001 17 South African Journal on Human Rights 320 329.
100 S v Makwanyane 1995 (3) SA 391 (CC) par [102].
102 Axam 2001 17 South African Journal on Human Rights 329.
15
Dlamini103 heard the matter, the legislature had already introduced the Criminal Law
Amendment Act104 which was meant as a deterrence to offenders. The court In S v
Dlamini,105 it is respectfully submitted, ignored the fact that it was the purpose of the
minimum sentences legislation106 to serve as a deterrence and a control to serious
crimes, and that should not be the purpose of the bail provisions as amended.
The Court further noted that in the present context courts are not so much concerned with
violent public reaction to unpopular verdicts or sentences, but with such reactions to
unpopular granting of bail.107 In most instances the public tends to react to such situations
based on limited information, or lack thereof at times. Very few members of society take
the time to educate themselves about how the criminal justice system operates. That is
why it is very dangerous to limit someone’s constitutional right based on public opinion.
2 7 Conclusion
It has been pointed out above that even before the legislative amendments, courts had
already developed principles governing interests of justice in bail proceedings. The
provisions governing interests of justice in bail proceedings went through legislative
overhaul, however, with the Constitution establishing the fundamental common law
principle of freedom by requiring that an accused person be released from detention if the
interests of justice permit such release.108 In essence, an accused person is entitled to
bail if the interests of justice permit.109 It seems the theoretical basis for the right to be
released on bail is, in the first instance, to be found in the provisions of section 12 of the
Constitution, which guarantees the right to freedom.
104 105 of 1997.
106 Criminal Law Amendment Act 105 of 1997.
109 S 35(f) of Constitution of the Republic of South Africa.
16
CHAPTER 3
INTERESTS OF JUSTICE IN BAIL PROCEEDINGS
3 1 Introduction
Chapter 9 of the Criminal Procedure Act110 is where the effect, rules and consequences
of interests of justice in bail proceedings are primarily to be found.111 This chapter will be
divided into two parts. The first part will be discussing the provisions of section 60112
pertaining to the interests of justice as interpreted by the courts. The second part will deal
with the relationship between the interests of justice provisions and the right to freedom
of the person.
3 2 Interpretation of the interests of justice concept
As has been noted above, the term of interests of justice has been referred to in many
instances in the statute books, particularly with regard to bail proceedings. The content
of the interests of justice concept depends on the context and applied interpretation.113 It
is apparent from the general overview of the statutes that the term is used in different
contexts.114 Cowling115 argues that different meanings must be attached to the concept
of interests of justice throughout section 60.116 For example in section 60(1)(a) Cowling
argues that the term is employed in its broader sense.117 What this means is that the term
in section 60(1)(a) takes the form of a value judgement; it includes the arrested person’s
right to freedom, which in turn is qualified by the lawful arrest.118 Thus, within the context
110 51 of 1977.
111 S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat supra par [7].
112 Criminal Procedure Act 51 of 1977.
114 Cowling “The incidence and nature of an onus in bail applications” 2002 SACJ 187.
115 Ibid.
117 Cowling 2002 SACJ 187.
17
of bail, it is submitted that section 60(1)(a)119 refers to a weighing up of the interests of
the state in securing law and order against the right to freedom on the part of the accused.
In interpreting s 60(1)(a) of the Act, courts must confer a broad meaning on the phrase
that embraces all relevant considerations in the bail process.120
However, the meaning entailed in section 60(1)(a) cannot be applied where the term is
used in sub-sections (4), (9) and (10) of section 60.121 Subsection (4)122 is mainly
concerned with the interests of the government and the citizens that subsection (4) seeks
to protect. It is submitted that, in this context, the term excludes the right to freedom on
the part of an accused and must be accorded a narrower meaning than the all-embracing
one appropriate in respect of subsection (1).123 Whereas subsection (9) solely considers
the personal circumstances of the accused person, where a court is asked to weigh the
interests of justice against the right of the accused to his or her personal freedom. In this
regard, Kriegler J remarks that it is obvious in this latter instance that the interests of
justice provisions cannot signify the final evaluation of what is best all round, because
that would include consideration of the freedom interests of the accused.124 Subsection
(10) is employing the courts to balance subsection (4) with subsection (9), where a court
is required to weigh up the personal interests of the accused against the interests of
justice.
Kriegler J submits in S v Dlamini that, with regard to the narrower meaning, the drafters
must have been contemplating something closer to the conventional interests of society
concept of the interests of the state representing those of society.125 On the other hand,
the broader meaning simply incorporates traditional notions about the bail process and
the evaluation of factors in order to determine whether or not a particular accused should

121 Ibid.
122 S 60 of the Criminal Procedure Act 51 of 1977.
123 Ibid.
125 Ibid.
18
be released on bail and, if so, under what conditions. From this it can be concluded that
there is no single inherent meaning of the term and that meaning will depend upon the
context in which the term is used.126
In South African law, one of the canons of interpretation takes the form of a presumption
that the legislature uses language consistently.127 Apparent from the discussion above is
that the concept of interests of justice, as deployed in bail proceedings, does not have a
uniform meaning and is thus a deviation from the traditional understanding of the general
rules of interpretation.128
3 3 Interests of justice in section 60129
For purposes of understanding the impact of the amendments to the Criminal Procedure
Act,130 consideration should be given to the concept of bail, the statutory provisions that
govern bail in the South African system, and finally the case law pertaining to bail.131 As
is evident from the above, the interests of justice concept is to be interpreted in different
contexts with regard to bail proceedings. In one sense, the term includes the interests of
the accused.132 In another sense, it excludes the interests of the accused, juxtaposing
individual interest against the collective interest of society.133
The provision of particular relevance to begin with is section 60.134 Section 60(1)(a)135
reiterates what is contained in section 3(1)(f).136 Section 60(1)(a)137 entails that, subject

127 SA Transport Services v Olgar 1986 (2) SA 688 (A).
128 Ibid.
130 51 of 1977.
132 Ss 60(1)(a); 60(11), 60(12) of the Criminal Procedure Act 51 of 1977.
133 Ss 60(4), 60(9), 60(10) of the Criminal Procedure Act 51 of 1977.
135 Ibid.
136 Constitution of the Republic of South Africa, 1996.
19
to certain provisions, an accused person who is in custody is entitled to be released on
bail where a court is satisfied that the interests of justice permit. What is clear from the
provisions of this section is that it seeks to give effect to the constitutional rights to
freedom of a person. In interpreting section 60(1)(a) of the Act, it is hereby reiterated,
courts must confer a broad meaning on the phrase that embraces all relevant
considerations in the bail process.138
The legislature, in the Criminal Procedure Second Amendment Act (CPA), decided to
clarify any uncertainty (if there was any) by providing five possible grounds on which
refusal to grant bail shall be in the interests of justice. It is worth noting that section 60(4)
of the Act was amended on 23 March 2001.139 Section 60(4) of the CPA sets out the
grounds on which a court must establish if release should not be permitted. These are:
a) 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; or
b) where there is the likelihood that the accused, if he or she were released on bail,
will attempt to evade his or her trial; or
c) 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; or
d) 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; or
e) 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.140

139 Judicial Matters Amendment Act 62 of 2000.
140 S 60(4)(a)–(e) of the Criminal Procedure Act 51 of 1977.
20
In S v Stanfield141 it was held that the court a quo had lost sight of the fact that denial of
bail would be in the interests of justice only if one of the factors set out in section 60(4)
was probable. The word “probable” in section 60(4) is defined as “capable of being
proved, demonstrable, moveable, having the appearance that may reasonably be
expected to happen”.142 Likely is defined as seeming as if it would happen or prove to be
as stated.143 Courts cannot find that the refusal of bail is in the interest of justice merely
because there is a risk or possibility that one or more of the consequences mentioned in
section 60(4) will result.144 The court must not grope in the dark and speculate: a finding
on the probabilities must be made.145 Unless it can be found that one or more of the
consequences will probably occur, detention of the accused is not in the interests of
justice and the accused should be released.
The concept of the interests of justice denotes an equitable evaluation of all the
circumstances of a particular case.146 In the opinion of the Constitutional Court,147 the
words “if the interest of justice permit” mean that a court must be satisfied that the
interests of justice permit the accused person’s release from detention and that the
judicial officer has to exercise a value judgment according to all the relevant criteria. Thus,
where there is no likelihood that the accused poses a potential danger to individuals or
their community, and there is no reason to believe the accused will interfere with
witnesses, abscond from trial or otherwise impede the administration of justice, there is
no justifiable limitation on the accused’s freedom. It should be noted, however, that courts
should make use of these factors as guidelines, and be flexible to give effect to fairness
and justice.148 In other words, the factors contained in section 60(4) are not a closed list
that excludes other potentially relevant considerations.149 In S v Mwaka150 the court held
141 1997 (1) SACR 221 (C).

142 Ramasia v S ZAFSHC (unreported) 2012-05-03 Case No A24/2012 par [12].
143 Ibid.
144 S v Diale & another 2013 (2) SACR 85 (GNP) 14.
145 Ibid.
146 Sanderson v Attorney-General, Eastern Cape (1997) 12 BCLR 1675 (CC) 17.
147 S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat supra par [79].
148 S v Branco (2002) 1 SACR 531 (W).
149 Chaskalson and De Jong “Bail” 2009 Criminal (in)justice, Pretoria: Institute for Security Studies 88.
150 2015 (2) SACR 306 (WCC) 16.
21
that the basic principle of the section 60(4) provision is that bail ought to be granted in
certain circumstances unless it is not in the interests of justice to grant bail. Finding of a
probability in terms of section 60(4) is necessary before it can be declared that the
interests of justice permit the refusal of bail.151 Any concerns relating to section 60(4)
factors, where possible, should be mitigated by attaching relevant bail conditions in terms
of section 60(12).152
The correct approach to finding whether a decision would be in the interests of justice in
terms of section 60(4) to (9) is for the courts to consider the interests of the Sate
representing the society and balance those with the right to freedom of the individual
concerned.153 In fact, this is reiterated in the S v Dlamini154 case where the Court
interpreted the interests of justice concept to mean nothing more than the conventional
interests of society or the State representing society. Sections 60(5) to (8A) further give
guidelines on how to interpret section 60(4). The opposite also applies, in that, should
any of the factors mentioned in section 60(4) not be a likelihood, the court will take this
into account in considering whether the interests of justice will be served if the accused
were released on bail.155
In the exercise of its discretion to grant or refuse bail, the court in principle addresses only
one all-embracing issue: Will the interests of justice be prejudiced if the accused is
granted bail?156 In this context it must be borne in mind that if an accused is refused bail
in circumstances where he or she will stand trial, the interests of justice are also
prejudiced.157
151 S v Swanepoel (1991) 1 SACR 311 (O) 313D–F.

152 S v Pineiro supra 681.
153 Van der Berg Bail: A Practitioner’s Guide 3ed (2012) 66.
155 S v C (1998) 2 SACR 721 C.
156 Geldenhuys, Joubert, Swanepoel, Terblanche and Van Der Merwe Criminal Procedure Handbook 11ed
(2014) 174.
157 Ibid.
22
3 4 Committing of further offences
There is good authority that, in some instances, bail may be refused based on the
existence of this likelihood.158 For example, in S v Fourie159 Miller J approved of the
principle whereby bail may, in appropriate cases, be refused on this basis. Van Der Berg
submits that the propensity in question must relate to the commission of offences that are
inherently substantially harmful to public safety.160 Thus, bail can properly be refused if
the court is satisfied that an accused has a propensity to commit the crime with which he
is charged, and that he might continue to perpetrate such crimes if released on bail. 161
However the likelihood of reoffending if released on bail must be assessed in the context
of the facts of each case.
3 5 Flight risk and evading trial
In deciding whether an accused person will be a flight risk, courts should consider factors
such as the gravity of the offence, the strength of the state’s case, potential mobility, the
character of the accused, and the accused’s past response to being released on bail. In
most instances, this likelihood is argued by the state when the accused has previously
tried to evade his arrest or it was difficult to find the accused for purposes of arrest.
However in S v Napoleon162 the court a quo refused bail on this ground because it found
that there was strong prima facie case and that the possibility of the appellants being in
prison for a long time might provide a temptation to the applicants to evade trial.163 The
Court of Appeal held that the proper approach is to establish if there is such a likelihood.
The court further went on to state that the word ‘likelihood’ connotes something much
more than a mere temptation.164 After all, absconding is always very real danger in cases
where long terms of imprisonment have been imposed, and it remains the duty of the
158 Van Der Berg Bail: A Practitioner’s Guide 138.

159 Supra.
161 S v Patel (1970) 3 SA 565 (W).
162 S v Napoleon ECG (Unreported) 2015–08–08 Case No CA&R 206/2015 par [13].
163 Ibid.
164 Ibid.
23
court to weigh up carefully all the facts and circumstances pertaining to the case.165 Bail
may, however, be legitimately refused if there is a likelihood that the accused will attempt
to evade his or her trial.166
In most instances establishing proof of residential address is required before bail will be
considered by the court. Failure to have the arrested person’s address verified before the
first court appearance can often result in a bail hearing being postponed for up to seven
days under section 50(6)(d)(i).167 This has also been common practice in most magisterial
court districts. Some accused persons may be prejudiced by this at times. Due to the
country’s apartheid history, some people were forced to move into informal settlements
without adequate urban planning, streets or street names. Courts’ failure (at times) to
interpret and conduct a bail assessment in a manner that reflects the reality of South
Africa can easily ignore the need for justice and fairness in what remains a very unequal
society.168
Another prejudice that can befall an accused person is where a bail application is opposed
(and at times subsequently refused) on the basis that an accused person does not own
sufficient assets. The argument is that an accused person can easily relocate and evade
trial if that person does not have considerable assets in that particular jurisdiction. This
is contrary to what was observed by the Supreme Court of Appeal in Masoanganye v
S,169 where the court held that the personal circumstances of an accused person, much
more than assets, determine whether the accused is a flight risk. Additionally, the denial
of bail on the basis of a lack of a verifiable fixed residential address has also affected the
assessment of potential to abscond trial. In the context of bail, an accused who is able to
demonstrate close ties to a community and family, who has permanent employment, and
165 S v Van Wyk 2005 (1) SACR 41 (SCA) 12.

169 2012 (1) SACR 292 [19].
24
who owns assets, is less likely to be deemed a potential flight risk than an accused without
these.170
3 6 Attempt to interfere with the state’s case
The primary interest that is sought to be protected when the risk of interference with the
state witnesses is assessed is the proper administration of justice.171 In fact, there must
be actual interference and a good indication of such would probably be found in previous
cases in which the accused was involved. This factor, however, is not conclusive. 172
Another instance where the court may refuse bail is where the likelihood is based on a
well-grounded fear.173 However, mere suspicion that the accused will interfere with state
witnesses is not sufficient.174
In assessing this risk, the court may take into account the relationship between the
accused and the state witnesses, whether or not the accused is aware of the state
witnesses’ identity or the nature of their statements, and whether or not any bail conditions
preventing communication between the state witnesses and an accused can be policed
effectively.175 Bail applications do not entail establishing a certain factual or legal situation
beyond reasonable doubt or on a balance of probabilities.176 Instead the standard to be
determined is predicting whether a future set of circumstances are in the interests of
justice.177 In S v Bennett178 Vos J formulated the following test for purposes of determining
the presence or absence of a reasonable possibility of future interference:
[A]s [the] applicant has thus far not interfered with the investigation, the proper approach should be
that, unless the state can say that there is a real risk that he will, not merely may, interfere, there
does not appear … to be a reasonable possibility of such interference.179

171 S v Vankathathnam 1972 (2) PH H139 (N).
173 Ibid.
174 S v Barber 1979 (4) SA 218 (D).
175 S v Acheson supra 822H.
176 Ibid.
177 Ibid.
178 1976 (3) SA 652 (C).
179 S v Bennett (1976) 3 SA 655 G–H.
25
Whilst in some instances ongoing investigations may be a valid consideration, it has been
submitted that this factor does not apply generally.180 For instance in S v Kock181 the court
held that ongoing investigations, on the facts of the case, did not support a refusal of bail.
Van Der Berg182 also cautions against a trend whereby prosecutors withhold information
of state witnesses’ names from the accused under the guise of implied threats of
intimidation of the witnesses, leaving the accused only to speculate as to who will be the
state witnesses. Van der Berg argues that this places the accused in the impossible
position of having to guess with whom he should refrain from communicating.183
Fortunately courts, as part of bail conditions when the accused is released, do mention
the names of the state witnesses with whom the accused should not communicate.
3 7 Jeopardising the criminal justice system
This risk is mostly concerned with the threat to public safety.184 The Constitutional Court
has expressed the view that section 60(4)(d) is directed at protecting and promoting the
integrity of the investigation and presentation of the case in respect of which the detainee
has been arrested.185 Steytler argues that this sub-paragraph of the Act is an open
category under which all other aspects of section 60(4)186 could conceivably resort.187
It should be noted that the presence or lack thereof of this likelihood requires a careful
investigation to be made by the court to determine whether, for instance, false information
supplied at the time of the accused’s arrest necessarily jeopardises the bail system, or
whether a failure by the accused to comply with the bail conditions in the past necessarily
indicates that he would do so in the future.188

181 2003 (2) SACR 5 (SCA) 12I–J.
182 Van Der Berg Bail: A Practitioner’s Guide 146-7.
183 Ibid.
184 Ibid.
188 Ibid.
26
3 8 Disturbing the public order
Refusal of bail in order to protect society, under these circumstances, is only justified in
extreme circumstances.189 Sections 60(4)(e) and (8A) ought to be invoked with great
caution.190 In S v Mohammed191 Comrie J held that even where one of the factors
mentioned in s 60(8A) has been proved, it does not follow that the likelihood required by
section 60(4)(e) has been established.
In S v Schietekat192 the court likened this sub-paragraph to lynch law. The High Court
cautioned against courts playing into the hands of the legislature’s scoring of political
points, ignorant public outcry or an uninformed society.193 The High Court further
cautioned that courts must jealously guard the rule of law.194 It is further worth noting that
courts are not obliged to consider the factors set out in section 60(8A), but may do so in
their discretion.195 Courts have further held that the outrage by the public, induced in the
community, must lead to the likelihood that the accused’s release will disturb the public
order or undermine the public peace or security.196 Thus, it is incumbent upon the state
to prove the existence of exceptional circumstances which would lead to the likelihood
that the accused’s release will have the effect contemplated by section 60(4)(e).197 As to
what constitutes exceptional circumstances as entailed in section 60(4)(e), this has not
been defined in the Act,198 nor has the term been defined judicially.199
189 S v Petersen (1992) 2 SACR 52 (C) 55E–F.

190 S v Vanqa (2000) 2 SACR 371 (Tk) 380d.
191 (1999) 2 SACR 507 (C).
192 (1999) 1 SACR 100 (C) 104.
193 Ibid.
194 Ibid.
195 S v H 1999 (1) SACR 72 (W).
196 S v Mohammed supra.
27
3 9 Interests of justice versus personal circumstances of the accused
According to Steytler,200 section 60(9) implies a proportionality test: the likely harm
envisaged must be weighed against the deprivation of freedom.
Detention of an accused in a congested cell and the refusal of prison authorities to permit
the accused to consult a medical practitioner do not constitute valid grounds for a release
on bail.201 In S v Van Wyk202 the court held that bail is in general not the remedy for the
offences and omissions of the prison authorities. The remedy for the accused would be
to challenge the constitutional validity of his detention, or to seek an interdict compelling
the authorities to comply with the law.203 However, it can be acknowledged that
overpopulation of prisons does pose a threat to the dignity, physical health and safety of
inmates.204 This threat has further been acknowledged by the legislature in the
introduction of section 63A to the Criminal Procedure Act.205 Section 63A206 provides for
the possible release (or possible amendment of the bail conditions) of accused persons
who fall in a prescribed limited category. These are detainees who find themselves in a
prison where the head of the prison is satisfied that the prison population is reaching such
proportions that it constitutes a material and imminent threat to the human dignity,
physical health or safety of the accused concerned.207
Where the state has failed to show a likelihood that one or more of the grounds
contemplated in sections 60(4)(a)–(e) are present, the provisions of section 60(9) will
rarely be of assistance to the prosecution. Section 60(9) mentions factors that are mostly
favourable to the accused.208 Consequently, a value judgement by a court is required to
200 Steytler “Right to freedom” in Steytler Consitutional Criminal Procedure (1998) 143.
201 S v Van Wyk supra 9.
202 Ibid.
203 Ibid.
204 http://ipproducts.jutalaw.co.za/nxt/gateway.dll/ccpa/216/289/293?f=templates$fn=default.htm
(accessed 24 May 2018).
205 51 of 1977.
207 S 63A of the Criminal Procedure Act.
208 S v Tshabalala (1998) 2 SACR 259 (C).
28
determine whether there are factors that constitute release, based on the dictates of the
interests of justice.209
3 10 The right to freedom of the person and the interests of justice
Insofar as South African common law is concerned, the courts have always held that the
accused’s right to freedom, while he or she is presumed innocent, is a hallmark of the
South African criminal justice system.210 In Majali v S211 Mokgoatlheng J acknowledged
that the common law inherent jurisdiction power to grant bail must always be exercised
with the nature and purpose of section 39(2) of the Constitution.212 Section 39(2) entails
that courts must always promote the spirit and objects of the Bill of Rights and further
enjoins the courts to develop the common law in the interests of justice, when dealing
with matters involving the fundamental constitutional issue of freedom.213 The Court in
Majali v S,214 in this context, interpreted the word ‘’to promote’’ as meaning to further or
advance the constitutional imperative of taking into proper account the fundamental rights
encapsulated in sections 12(1)(a) and 35(1)(f), of the Constitution.215
In S v Dlamini216 the Constitutional Court considered the relationship between section 60

of the Act with section 35(1)(f) of the Constitution. Commenting on the purpose of bail,
Kriegler J held that bail serves beyond the freedom of the accused; it also serves public
interests by reducing overcrowding in our correctional services and further reduces the
number of families deprived of a bread winner.217Courts should grant bail where possible
209 Hiemstra “Bail” in Hiemstra’s Criminal Procedure (2008) 10-1.

210 S v Smith supra 177.
211 Supra.
213 Ibid.
214 Supra par [15].
217 Ibid.
29
and should lean in favour of the freedom of the accused person, provided that the
interests of justice will not be prejudiced.218
Some authors have argued that there should be a burden on the state to justify prolonged
detention with the passage of time and furnish reasons which initially justify further
remand detention, at a certain point, and for the court to decide (through intervals)
whether or not the reasons for the accused person’s detention still constitute sufficient
justification for the continued remand detention.219 In other words, that the law be
developed for courts to have mandatory reviews where initial bail applications have been
refused, and the state having to lead evidence to support further detentions. In essence
the current legislative framework lacks the following legislative mechanisms:
a) a cap on the time spent in remand detention; and

b) provisions requiring that bail decisions are reviewed regularly and repeatedly before
courts, thereby encouraging courts to interrogate continued remand detention.220
However, despite the recognition given internationally to the right to be presumed

innocent, the Constitutional Court preferred to define the right so narrowly in the South
African context as to deny itself a role in the interpretation of rules relating to freedom.221
According to the Court's interpretation of the right, the right will never operate at the pre-
trial stage of the criminal process at all.222 In view of the interpretation adopted by the
Court, it is feared that the right to freedom will soon become meaningless if an accused
can no longer be cloaked by this presumption in order to claim his or her personal
freedom.223
218 S v Smith supra 177E–F.

219 Ballard 2012 25 SACJ 30.
220 Ballard 2012 25 SACJ 43.
222 Ibid.
223 Ibid.
30
The Court in the Dlamini case argued that what the legislature has done only amounts to
temporary deprivation of freedom required to bring a person suspected of an offence
before a court of law.224 Axam argues that a temporary detention pending trial is not a
temporary deprivation of the right in question, but rather a complete deprivation of the
right throughout the period to which the right pertains.225 This is because it has potentially
protracted and profound effects on the accused's fundamental freedom interests.226
Ballard227 further argues that the bail jurisprudence in its current form therefore fails to
protect an accused’s right to freedom and is unconstitutional. Within this context, it has
further been supposed that it is undesirable that an accused person should be deprived
of pre-trial freedom if the sentence likely to be imposed will be in the form of a fine or
another other than imprisonment.228 Subsequent to the Constitutional Court judgment of
S v DlaminiI,229 there has been some opinion that the Constitutional Court, which should
act as the primary protector of freedom as enshrined in the Constitution, has failed in its
duty to protect the fundamental right to freedom of persons accused of committing
offences they have not yet been convicted of, when it had the opportunity to do so in S v
Dlamini.230
However, in 2011 the legislature made a commendable effort on the part of the
Department of Correctional Services to prevent the lengthy detention of remand
detainees. Section 49G231 stipulates, inter alia, that remand detainees who have been in
custody for more than two years, must be brought before a court for the purpose of
determining the further detention of such person or release under conditions appropriate
to the case. The section also requires that the head of a remand detention facility must
report to the relevant Director of Public Prosecutions at six-monthly intervals the cases of

226 Ibid.
228 S v Moeti (1991) 1 SACR 462 (B) 463H.
229 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra.
231 Correctional Services Amendment Act 5 of 2011.
31
remand detainees that are being detained for a successive six-month period.232 Although
these provisions assist in creating a certain awareness about the problem of lengthy
detention, Ballard argues, they fall short of actually bringing cases of continued detention
before the courts.233 Ideally, Ballard proposes, mandatory review should be a mechanism
regulated by the Criminal Procedure Act 51 of 1977, for it concerns the administration of
bail proceedings, a process overseen by the courts.234
3 11 Conclusion
In conclusion, in deciding whether the interests of justice permit the release on bail of an
awaiting trial prisoner, the court is advised to look to the five broad considerations
mentioned in paragraphs (a) to (e) of subsection (4), and as further expanded in
subsequent subsections.235 And it then has to do the final weighing up of factors for and
against bail as required by subsections (9) and (10).236 Thus section 60237 should be read
as requiring of a court hearing a bail application to do what courts have always had to do,
namely to bring a reasoned and balanced judgment to bear in an evaluation, where the
freedom interests of the arrestee are given the full value accorded by the Constitution.238
In bail proceedings there is a clearly defined issue, and that is whether or not the person
arrested is entitled to his freedom.239 Undoubtedly, the longer a remand detainee is kept
in custody pending trial, the greater the infringement is on his or her right to freedom.240
Section 60241 is not only an invaluable point to consult in any general inquiry into the law
of bail, and a primary source to be consulted in such issues, but it also provides a
comprehensive framework in which any answers can be judged.242
232 S 49G of the Correctional Services Amendment Act 5 of 2011.

233 Ballard 2012 25 SACJ 43.
234 Ibid.
236 Ibid.
239 Ellish en andere v Prokureurgeneraal, WPA 1994 (2) SACR 579 (W) 596D–597A.
240 Ballard 2012 25 SACJ 24.
242 Ibid.
32
CHAPTER 4
COURTS AND THE INTERESTS OF JUSTICE
4 1 Introduction
Interests of justice principles would be meaningless and ineffective without the courts
carrying out their legislative duties of ensuring that a balance is struck in each and every
bail proceeding. What is of significance is the following question: On what basis does a
court determine that the interests of justice permit the release of a person on bail? The
following paragraphs focus on the role that courts are to play in interpreting the concept
of the interests of justice in bail proceedings.
4 2 Role of the courts
Prior to the current South African constitutional dispensation and the codification of the
bail proceedings, courts had already developed principles based on the presumption of
innocence and the fundamental rights to freedom together with the fact that bail is
regarded as a very important means of giving effect to these rights during the pre-trial
stages of a criminal case.243 These developments were taken further in S v Hlopane,244
where the court held that it is the function of the presiding officer to inquire into the
question of bail in each case.245 Thus it was emphasised that courts could not rely on an
accused's silence to justify a failure to initiate a bail enquiry.246 This was an extremely
significant development at the time, because it seemed to suggest that there is a duty on
judicial officers, mero motu, to initiate bail enquiries. This, then, was a clear move away
from the traditional approach to the effect that bail occurs in the form of an application

244 S v Hlopane supra.
245 S v Hlopane supra 241G.
246 S v Hlopane supra 241H.
33
and that the accused bears sole responsibility for initiating such application, as well as
the onus of convincing the court that he or she should be released on bail.247
The Constitutional Court has noted that one of the observations to be made about Chapter
9 arising is that the discretion grant or refusal of bail is unmistakably a judicial function.248
The correct jurisprudential approach to bail applications is that courts should adjudicate
bail matters and that there should, as a matter of principle, be no legislative or executive
attempts to curtail the jurisdiction of the courts.249 Courts should in effect regard legislative
interventions merely as guidelines set to assist the courts in reaching a just decision.
Each case should be considered on its merits and the court should consider the totality
of the evidence.250
In bail proceedings, unlike in trial proceedings, the courts play a more active role.
Magistrates are not to be dictated by either of the parties on how the proceedings should
be conducted. Nor are the courts to depend solely on the evidence led by the parties in
reaching their decision as to whether the accused should be released or not. It has be
said in S v Bruinders251 that, as much as our criminal justice model is essentially an
adversarial one, where the court is left to the comfort and safety of its armchair while the
state and the accused contest the arena, the issue of bail is dealt with somewhat
differently. The Criminal Procedure Act252 does not treat a bail proceeding as something
which is simply to be left to one or other of the parties to raise and deal with, particularly
in regard to matters of procedure, proof and evidence.253 Where a court is of the opinion
that it does not have reliable or sufficient information or evidence at its disposal, or that it
lacks certain important information to reach a decision on the bail application, it must

249 S v Ramgobin (1985) 4 SA 130 (N).
250 S v Mawela GNP (unreported) 30 November 2012 Case No A713/2012, par [20].
251 2012 (1) SACR 25 (WCC).
252 51 of 1977.
253 S v Bruinders supra 60.
34
order that such information or evidence be placed before it.254 In a bail enquiry courts are
afforded greater inquisitorial powers to ensure that all material factors are brought to
account, even when they are not presented by the parties, and courts should not
disregard such factors.255 Where a court arrives at a decision based on insufficient
information, such a court would be erring in its approach.256 Consequently, on appeal the
matter may be remitted back to the court a quo to enable it to consider invoking the
provisions of section 60(3) of the Criminal Procedure Act.257
In terms of the provisions governing bail proceedings, judicial officers are well equipped
to decide who should lead evidence and when to lead such evidence and, if the evidence
already led is not enough, they are entitled to call evidence themselves in order to reach
a decision that will be in the interests of justice. In Prokureur-Generaal, Vrystaat v
Ramokhosi,258 Edeling J noted that the provisions of sections 60(3)259 and (10)260
characterise bail procedure as being inquisitorial beyond any doubt. This was further
entrenched by the Constitutional Court261 when it reiterated that although bail, like the
trial, is essentially adversarial, the inquisitorial powers of the presiding officer are greater.
Given the wide range of less restrictive options available to courts, aimed not only at
securing the attendance of the accused at trial, but preventing the accused from engaging
in the activities listed in section 60(4) of the Act, courts are in a position to interrogate
vigorously whether the reasons given by the state justify continued remand detention.262
Courts may impose any conditions on the release of an accused, which, in its opinion are
in the interests of justice.263 Section 62264 demonstrates that the question whether or not
254 S 60(3) of the Criminal Procedure Act 51 of 1977.

255 S v Mabena 2007 (1) SACR 482 (SCA) 487B–C.
256 S v Mpofana 1998 (1) SACR 40 (Tk).
257 Ibid.
258 (1997) 1 SACR 127 (O).
260 Ibid.
262 Ballard 2012 25 SACJ 35.
35
an accused should be granted bail is not an all or nothing process.265 There are a range
of measures, some very restrictive, some less so, which enable a court to impose
conditions commensurate with the needs of the state weighed against the freedom
interests of an accused.266 The attitude of the Director of Public Prosecutions regarding
the grant or refusal of bail is a relevant consideration, but his or her opinion must not
usurp the function of the court.267 Thus, the court should not be led, or misled, by the
passive attitude of the prosecution.268
4 3 Standard by which courts are to carry their roles
The standard which is required from the magistrates is the same that is applied in trail
courts regarding impartiality and fairness during the proceedings: that the courts are to
base their findings based on the evidence led. This was perfectly reiterated in the case of
S v Majali269 where the court held:
“A bail inquiry is a judicial process that has to be conducted impartially and judicially and in
accordance with relevant statutory and constitutional prescripts. It must also be appreciated that the
constitutional right to a fair trial includes proceedings such as bail proceedings. Fairness and the
constitutional right to a fair bail hearing are manifestly under threat where a bail magistrate—like the
one in Kobese—compromises her impartiality by making the remarks and observations which she
did in the course of an ex tempore judgment dealing with the question whether a male bail applicant
charged with the rape of a young girl should be released on bail in the district of Grahamstown. What
our law requires is that a bail magistrate, like any judicial officer presiding over a trial, should conduct
proceedings open-mindedly, impartially and fairly, and that such conduct must indeed be manifest to
all concerned, especially the bail applicant.”
Courts have previously warned of the magistrates being rubber stamps for investigating
officer’s/ prosecutor’s views, regarding whether bail should be granted or not.270 The court
in S v Joone271 remarked that a strict independent assessment of the facts of each case,
265 Ballard 2012 25 SACJ 35.

266 Ibid.
267 Bolofo v Director of Public Prosecutions 1997 8 BCLR 1135.
268 S v Sithole 2012 (1) SACR 586 (KZD) 5-7.
269 Supra par [33].
270 S v Joone 1973 (1) SA 841 (C) 847A–C.
271 Ibid.
36
which would include a careful consideration of the circumstances of each accused, the
severity of the crime and the interests of the community by the presiding officer in each
case, should be done. A court hearing a bail application should not be a passive
umpire.272 To such an extent that even in instances where the state is not opposed to the
release of the accused person, the court is not expected to rubber stamp that decision.
The court still has a duty to weigh up the personal circumstances of the accused against
the interests of justice.273
Even where the state asks that the accused’s bail should be refused at the advice of the
investigating officer, the duty still lies with the magistrate to evaluate the circumstances
decide whether the proposal of the state is fair.274 The court should also ask itself if the
further detention of the accused is in the interests of justice.275 If the matter of an
undefended accused is remanded, a court should explain to such an accused the right to
bail and the procedure governing bail.276
However, the fact that the court is required to play an inquisitorial role in a bail application
does not entitle it to resort to unfair and excessive robust questioning of the witnesses,
including a bail applicant who has elected to testify orally in support of his application. 277
A bail enquiry is an ordinary judicial process, adapted as far as needs be to take account
of its peculiarities, that is to be conducted impartially and judicially and in accordance with
the relevant statutory prescripts.
4 4 Conclusion
What should not be overlooked is that, in any consideration of bail, a court must weigh
two opposing interests: on the one hand, the interests of an accused, who is to be
presumed innocent until proven guilty and, on the other, the rights of witnesses and
272 Geldenhuys et al Criminal Procedure Handbook 184.

274 S v Hlopane supra.
275 Ibid.
276 S 60(1)(c) of the Criminal Procedure Act 51 of 1977.
277 Geldenhuys et al Criminal Procedure Handbook 185.
37
society at large to be protected against hardened criminals and to see that cases reach
their conclusion without any undue delay.278 Although societal interests may demand that
persons suspected of having committed crimes forfeit their personal freedom pending the
determination of their guilt, such deprivation is subject to judicial supervision and
control.279 Moreover, in exercising such oversight in regard to bail, the court is expressly
not to act as a passive umpire.280 It can be said that developments in South African bail
law since 1994 have tried to ensure that bail is granted in circumstances which balance
the risk of harm which the arrestee could cause to the victim(s), witnesses and the
integrity of the justice process, on the one hand, with the rights of an accused person to
the presumption of innocence, on the other.281

280 Ibid.
281 Scharf and Tshehla 2003 1 Acta Juridica 161.
38
CHAPTER 5
ONUS PROVISIONS AND THE INTERESTS OF JUSTICE
5 1 Introduction
Even before the constitutional dispensation it was generally accepted that the arrested
person, as the applicant, had to show on a balance of probabilities that he or she should
be granted bail.282 The general reading of section 60 of the Criminal Procedure Act283 is
that it differentiates between different types of offences. For purposes of bail proceedings,
Schedules 1, 5 and 6 are applicable. In this chapter, the interests of justice with regard to
onus provisions are assessed. The position prior to the amendments is also be
considered. The later part of this chapter considers how the courts have interpreted the
provisions relating to onus in bail proceedings.
5 2 Onus provision prior to the amendments
Although, prior to the constitutional dispensation, it was generally the duty of the accused
to adduce evidence that the interests of justice permitted his or her release, a different
approach however was followed in some cases, including the majority in Ellish v
ProkureurGeneraal, Witwatersrand.284 In some instances, the approach was somewhere
between placing an onus and denying the existence of an onus.285
As indicated above, the introduction of section 25(d) of the Constitution of the Republic
of South Africa (the interim Constitution) meant that the state bore the onus of satisfying
the courts that it is not in the interests of justice that the accused be released on bail.286
282 S v Hudson 1980 (4) SA 145 (D).

283 Ibid.
284 Supra.
285 S v Njadayi (1994) 5 BCLR 90 (E).
286 200 of 1993.
39
In PG (WPA) v Van Heerden the court held that section 25(d) does not create an onus
nor does it reverse the onus generally accepted prior to 27 April 1994.287 The court further
held the said provision does not create a new philosophy, but only reiterates an existing
attitude that bail should be granted if at all possible.288
However, this debate has been settled by the adoption of the Criminal Procedure Second
Amendment Act,289 which has numerous and detailed provisions dealing with onus in bail
proceedings. This discharge of onus is based on civil law standards, that is, on a balance
of probabilities.290
5 3 The onus, interests of justice and prima facie case
The strength or weakness of the state's case is a relevant consideration in determining

where the interests of justice lie. The courts have a duty to establish with certainty the
nature of the offence the accused is charged with. Before an accused can be saddled
with the burden of proof, it must be clear from the description of the offence in the charge
sheet that he or she is charged with either a Schedule 5 or a 6 offence. In the case of S
v Melumzi Christian Nkombisa and Others291 the accused were charged with a Schedule
1 offence and the state opposed the release on bail based on the fact that the accused
had previous convictions and pending cases. The annexures to the charge sheet were
not completed by the prosecutor and were left blank. Because of this, the court of appeal
held that the state had failed to establish the objective jurisdictional facts that must exist
before section 60(11)(b) could come into operation292. The court further held that the
appellants should not have started in adducing evidence as there was no onus on them
and thus no basis was shown why the appellants were charged with this count 293. The
287 PG (WPA) v Van Heerden WLD (Unreported) 1994-06-10 Case No A 1790/94 par [17].
288 Ibid.
289 75 of 1995.
290 S v Stanfield supra 234B.
291 (Unreported) 02 March 2017 Case No CA&R 04/2017 ECHC.
292 S v Melumzi Christian Nkombisa supra 19.
293 S v Melumzi Christian Nkombisa supra 19 and 21.
40
court further held that it would certainly offend against various rights in the Bill of Rights
to detain the appellants based solely on their propensity to commit Schedule 1 offences
in circumstances where the state failed to present a prima facie case.294 The court
concluded that It would certainly be unjust and against the interests of justice.295
However, it must be understood that the courts do not require that the state must prove
guilt or innocence of the accused in bail proceedings. What is emphasised is that there
must be a minimum of facts or allegations to at least establish a prima facie case against
an applicant for bail.296
In section 60(11A) Parliament also gave subsection (11) procedural teeth by providing for
a mechanism to establish when a Schedule 5 or 6 offence is at stake.297 Section
60(11A)(c) of the Criminal Procedure Act entails that, whenever a question arises in a bail
application or during bail proceedings whether any person is charged or is to be charged
with an offence referred to in Schedule 5 or 6, a written confirmation issued by a Director
of Public Prosecutions under paragraph (a) of the same section shall, upon its mere
production at such bail application or proceedings, be prima facie proof of the charge to
be brought against that person.298
5 4 Applicable schedules in determining an onus
5 4 1 Schedule 1
Bail proceedings governed by this schedule relate to less serious offences and are
governed by section 60(1).299 The section, as indicated above, provides that an accused
who is in custody in respect of an offence shall be entitled to be released on bail, if the
294 S v Melumzi Christian Nkombisa supra [28].

295 Ibid.
296 S v Melumzi Christian Nkombisa supra [25].
297 S 4(g) of the Criminal Procedure Second Amendment Act 85 of 1997.
298 51 of 1977.
299 Ibid.
41
interests of justice so permit.300 In bail applications, other than those envisaged in section
60(11) of the Criminal Procedure Act, the onus is on the prosecution to show that the
interests of justice do not permit the release of an accused on bail.301 The interests of
justice principles are interpreted in favour of the accused, unless the state adduces
evidence that there is a likelihood one of the factors listed in section 60(4) will materialise.
5 4 2 Schedules 5 and 6
Schedules 5 and 6 entail those offences which are regarded as more serious than those
listed in Schedule 1. The issue of onus in terms of these schedules, and in bail
proceedings is governed by sections 60(11) of the Criminal Procedure Act.302 Whenever
section 60(11) is applicable, there can be no question of an inquisitorial procedure and
the issue of bail has to be decided on the question whether the accused has discharged
the burden of proof placed upon him by s 60(11).303 Section 60(11)(a)304 places an onus
on the applicant to adduce evidence that exceptional circumstances exist for his release
on bail. The court must further satisfy itself that the interests of justice permit the accused
person’s release.305 Section 60(11)(b)306 requires the applicant to satisfy the court that
interests of justice permit his release. The court in S v Vanqa307 Jafta J put forward the
following twofold enquiry in distinguishing between the two above-mentioned
subsections:
“The applicant for bail is first enjoined to establish that his ... circumstances are exceptional as
envisaged in [s 60(11)(a)]. Secondly, he ... is required to prove that such circumstances justify, in the
interests of justice, that bail be granted. It is the first leg of the enquiry that distinguishes the onus
born by applicants in Schedule 6 cases from the proof required in Schedule 5 matters. It also appears
to me that the enquiry relating to the second leg cannot even begin unless the first leg has yielded
positive results.”308
300 Ibid.
301 S v Nwabunwanne 2017 (2) SACR 124 (NCK) 11.
302 51 of 1977.
303 S v Mbele supra 237 F–G.
304 Of Act 51 of 1977.
305 Ibid.
306 Ibid.
307 Supra 376 H–J.
308 Ibid.
42
5 5 Section 60(11)(a) and (b)
5 5 1 Section 60(11)(a)
Proceedings may be governed be this subparagraph under the following circumstances:
(i) The offence that the bail applicant is charged with is entailed in Schedule 6.
(ii) The bail applicant is charged of an offence listed in Schedule 5, whilst the accused
is out on bail for an offence listed in Schedule 5.
(iii) At the time of the bail application for an offence listed in Schedule 5, the accused
has previously been convicted of an offence listed in Schedule 5.
5 5 2 Section 60(11)(b)
Bail proceedings governed by section 60(11)(b) are those, firstly, where the applicant is
charged with an offence listed in Schedule 5. Proceeding can also be governed by these
proceedings in instances where the accused is charged of an offence listed in 1, whilst
the said accused was either out on bail or had previously been convicted of an offence
list in Schedule 1. Under the circumstances, the applicant has to satisfy the court that the
interests of justice, as provided for in section 60(4),309 permit his release.
5 6 Interpretation of section 60(11)
What the law requires before bail is granted in relation to Schedules 5 and 6 offences is
a proper judicial enquiry to determine whether the provisions of the Act have been met.310
Section 60(11) must be construed narrowly to permit a grant of bail where there is no
indication of any threat to interests of justice to ensure that bail is not denied based on
punitive concerns beyond the scope of legitimate bail considerations.311

310 S v Mabena (2007) 2 All SA 137 (SCA).
311 S v C supra.
43
Section 60(11) of the Criminal Procedure Act has been interpreted as requiring the
appellant to testify first - and that the state then be required to rebut the case only if the
accused has established a prima facie basis for bail to be granted.312 The standard of
proof that the accused has to meet is that on a balance of probabilities. The court in S v
Mathebula313 acknowledged that the applicant's position was very difficult. The court
noted that, to satisfy the burden imposed by section 60(11), is no mean task, more
especially as an innocent person cannot be expected to have insight into all the matters
in which he or she was involved.314 The State is not obliged to show its hand in advance
during bail proceedings and an attack on the prosecution case is not necessary to
discharge the onus315. In cases where the accused person alleges that the prosecution
case against him or her is weak, until such applicant has set up a prima facie case of the
prosecution failing, there is no call on the state to rebut his or her evidence to that effect.316
Where the reverse onus applies and the prosecutor does not oppose bail, the court must
require the prosecutor to state the reasons for not opposing bail.317 If the court is of the
opinion that it lacks the necessary information or evidence to reach a decision on the bail
application, it must order that such information or evidence be placed before court.318
5 7 Criticism against section 60(11)
Also, where the accused is burdened with the onus to justify pre-trial release, the lack of
input by the prosecution and/or the inability of the accused to properly present or illicit the
necessary material for consideration, may lead to the accused being erroneously
detained pending his trial.319 It is hereby argued that the fact that the accused bears the
onus, does not mean that the state can adopt a passive role by not adducing any or
312 S v Porthen (2004) 2 SACR 242 C.

313 (2010) 1 SACR 55 (SCA) 12.
314 Ibid.
315 Ibid.
316 Ibid.
317 S 60(2)(d) of the Criminal Procedure Act 51 of 1977.
44
sufficient rebutting evidence in the hope that the accused might not discharge the onus.320
It must be borne in mind that any court seized with the problem of whether or not to
release a detainee on bail must approach the matter from the perspective that freedom
is a precious right protected by the Constitution.321 Such freedom should only be lawfully
curtailed if the interests of justice so require.322
The biggest concern with a reverse onus provision is probably the real risk of a lack of
meaningful judicial review when pre-trial release is adjudicated. It is therefore an issue
about fairness.323 It has been argued elsewhere that the nature of bail proceedings itself
renders the application of an onus impractical, if not downright unworkable in bail
proceedings.324 After all, bail proceedings are sui generis and the standard to be
determined is predicting whether a future set of circumstances are in the interests of
justice.325 The fact that certain information and evidence required by one party are often
under the exclusive control of the other party, makes it incumbent on the presiding officer
to elicit such evidence in order to be able to make an informed decision.326
De Villiers criticises sections 60(11)(a) and (b) for a number of reasons.327 According to
De Villiers, the biggest concern with a reverse onus provision is the real risk of a lack of
meaningful judicial review when pre-trial release is adjudicated. The accused may be
erroneously detained pending trial due to lack of input by the prosecution, inability on the
part of the accused to properly present his or her case, or the accused’s inability to illicit
the necessary material for consideration.328 De Villiers concludes that an accused should
not have to convince the court that the interests of justice permit his release.329
320 S v Pienaar (2010) Namibian High Court [CA 30/2010] 135 (5 October 2010) par 11.
321 Ibid.
322 Ibid.
325 Ibid.
326 Ibid.
327 De Villiers 2015 1 International Journal of Law, Crime and Justice 9-11.
329 Ibid.
45
On the other hand, however, it has been argued that an onus is necessary to deal with
situations where there is a more-or-less equal balance between those interests of justice
which favour the release of the accused and those which do not.330 Thus, it is only
possible, so the argument goes, to reach a decision by finding against whichever party
bears the onus. Without such onus a court is confronted with a balanced deadlock.331 For
purposes of provisions section 60(11), until a bail applicant has set up a prima facie case
for his release, there is no call on the prosecution to rebut his evidence to that effect.332
5 8 Conclusion
As discussed above, the duty on a party to satisfy the court whether the interests of justice
permit the release (or not) of the accused, will depend on the seriousness of the offence
that the accused is charged with. Clearly the legislative intention remains to curtail bail
for suspects in very serious cases.333 Section 60(11) has introduced even more stringent
provisions relating to bail for persons facing serious offences, which differentiate between
serious cases (listed in Schedule 5) and extremely serious offences (listed Schedule 6).
Although the courts have much greater inquisitorial powers in deciding whether bail
should be granted or not, when dealing with Schedule 5 offences, the burden of proof
placed on the accused, however, is not unusually as onerous as entailed in Schedule 6
offences.334 Regardless of which schedule the bail proceedings may fall, courts still have
a duty to establish whether the interests of justice permit the release of the accused.
330 S v Mbele supra.

331 S v Mbele supra 237C.
332.S v Mathebula supra 12.
333 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat par [51].
334 S v Mabena (2007) 1 SACR 482 (SCA).
46
CHAPTER 6
CONCLUSION
6 1 Conclusion
Over the past few decades the legislature has tried to regulate what constitutes interests
of justice in bail proceedings. However, the principles in the amendments are not entirely
different from the principles which were developed by the courts under the common law
bail jurisprudence.
The legislature introduced the amendments as a crime controlling mechanism. In

conclusion, the question that remains is whether the purported legislation succeeded in
combating crime, as some politicians naively thought it would. South African Police
Service’s crime statistics clearly demonstrate that such a belief was naive.335 Since the
Amendment Acts came into operation violent crime in South Africa has not decreased or
stabilised.336 As of 4 July 2017, 25,8% of the prison population were awaiting trial
prisoners337. Between 2014 and 2015 45% of prisoners with bail amount set at R500 or
less could not afford the bail amount.338
It is submitted that a court should be careful not to mete out anticipatory punishment to
the awaiting trial accused by refusing bail in the disguise of preventative detention.339
335 South African Police service “Crime situation in RSA twelve months 01 April 2017 to 31 March 2018”
(undated) https://www.saps.gov.za/services/long_version_presentation_april_to_march_20117_2018.pdf
(accessed 3 December 2018) 14.
336 Alexis Haden “South Africa crime stats 2018: The biggest increases and decreases” (12 September
2018) https://www.thesouthafrican.com/south-africa-crime-stats-2018-increase-decrease/ (accessed 3

December 2018).
337 World Prison Brief “Pre-trial/remand prison population: trend” (undated)
http://www.prisonstudies.org/country/south-africa (accessed 3 December 2018).

338 Ibid.
339 See fn 22 above.
47
Unless there are compelling indications that the accused, if released on bail, would
endanger public safety and the like, preventative detention is not justifiable in a
democratic state.340
Constitutionally, unless there is sufficient evidence to establish that the interests of justice
do permit the detainee's release, his or her detention continues. Although the Dlamini
case fails to engage in the type of rigorous, precise analysis that is characteristic of the
broader limitations jurisprudence, the courts conducting subsequent limitations analyses
remain under a constitutional duty to do so.341 From the above discussion it is apparent
that the core concept in all the issues concerning an onus in bail proceedings is the
concept of the interests of justice. Moreover, bail courts retain a significant discretion in
applying the reverse onus provision. Courts should interpret the reverse onus provisions
in manner that seeks to avoid arbitrary detentions resulting from a rigid application of the
said provisions. Furthermore, courts should interpret the onus provisions in favour of
discerning whether there is any identifiable threat to the interests of justice.342
It is suggested that section 60343 be amended to include a provision that will require
courts, where bail has been refused and in every subsequent appearance, to enquire
whether the interests of justice permit the further detention of the accused, or whether the
accused cannot bring an application for bail on new facts or even a bail appeal. Further,
court officials should be appointed by the Department of Justice and Constitutional
Development to assist in obtaining information needed by the courts for purposes of bail.
Such court officials will have to be impartial in the performance of their duties and will also
be responsible for making recommendations to the court on any issues relating to bail
proceedings. The situation can further be improved with the courts considering alternative
dispute resolutions prior to a matter being postponed for a bail hearing. This can avoid an

342 Ibid.
48
unnecessary refusal of bail. Furthermore, a bail information system can be established.
The bail information system will provide for a range of judgments by the court for similar
cases.
Ballard argues, the fact that South Africa continues to battle against a high crime rate
means that it is unlikely that legislation appearing to make it easier for criminals to get bail
would find favour with the public.344
344 Ballard 2012 25 SACJ 43.
49
TABLE OF STATUTES
Constitution of the Republic of South Africa (the interim Constitution) 200 of 1993.
Correctional Services Amendment Act 5 of 2011.
Criminal Procedure Act 51 of 1977.
Criminal Procedure Second Amendment Act 75 of 1995.
Criminal Procedure Second Amendment Act 85 of 1997.
Criminal Law Amendment Act 105 of 1997.
Judicial Matters Amendment Act 34 of 1998.
Judicial Matters Amendment Act 62 of 2000.
TABLE OF CASES
Bolofo v Director of Public Prosecutions 1997 8 BCLR 1135.

De Jager v AttorneyGeneral 1967 (4) SA 143 (D).
De Lange v Smuts NO (1998) 3 SA 785 (CC).
Ellish en andere v Prokureurgeneraal, WPA 1994 (2) SACR 579 (W).
Majali v S GSJ (unreported) 19 July 2011 Case No 41210/2010.
Masoanganye v S (2012) 1 SACR 292.
PG (WPA) v Van Heerden WLD (Unreported) 1994-06-10 Case No A 1790/94.
Prokureur-Generaal, Vrystaat v Ramokhosi (1997) 1 SACR 127 (O).
Ramasia v S ZAFSHC (unreported) 2012-05-03 Case No A24/2012.
SA Transport Services v Olgar 1986 (2) SA 688 (A).
Sanderson v Attorney-General, Eastern Cape (1997) 12 BCLR 1675 (CC).
S v Acheson (1991) 2 SA 805 (Nm).
S v Barber 1979 (4) SA 218 (D).
50
S v Bennett (1976) 3 SA 652 (C).
S v Branco (2002) 1 SACR 531 (W).
S v Bruinders 2012 (1) SACR 25 (WCC).
S v C (1998) 2 SACR 721 C.
S v De Kock (1995) 1 SACR 299.
S v Diale & another 2013 (2) SACR 85 (GNP).
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (7) BCLR 771 (CC).
S v Fourie (1973) 1 SA 100 (D).
S v H 1999 (1) SACR 72 (W).
S v Hlongwa 1990 (1) SA 329 (O).
S v Hlopane 1990 (1) SA 329 (O).
S v Kock 2003 (2) SACR 5 (SCA).
S v Makwanyane 1995 (3) SA 391 (CC).
S v Mathebula (2010) 1 SACR 55 (SCA).
S v Mbele 1996 (1) SACR 212 (W).
S v Mwaka 2015 (2) SACR 306 (WCC).
S v Mohammed (1999) 2 SACR 507 (C).
S v Napoleon ECG (Unreported) 2015–08–08 Case No CA&R 206/2015.
S v Patel (1970) 3 SA 565 (W).
S v Petersen (1992) 2 SACR 52 (C).
S v Pineiro and Others (1992) 1 SACR 580 (Nm).
S v Scott-Crossley (2007) 2 SACR 470 (SCA).
S v Stanfield 1997 (1) SACR 221 (C).
S v Swanepoel (1991) 1 SACR 311 (O).
S v Van Wyk 2005 (1) SACR 41 (SCA).
S v Vankathathnam 1972 (2) PH H139 (N).
S v Vanqa (2000) 2 SACR 371 (Tk).
S v Schietekat 199 (1) SACR 100 (C).
S v Tshabalala (1998) 2 SACR 259 (C).
S v Smith 1969 (4) SA 175 (N).
S v Moeti (1991) 1 SACR 462 (B).
51
S v Ramgobin (1985) 4 SA 130 (N).
S v Mawela GNP (unreported) 30 November 2012 Case No A713/2012.
S v Mabena 2007 (1) SACR 482 (SCA).
S v Mpofana 1998 (1) SACR 40 (Tk).
S v Sithole 2012 (1) SACR 586 (KZD).
S v Joone 1973 (1) SA 841 (C).
S v Hudson 1980 (4) SA 145 (D).
S v Mtatsala 1948 (2) SA 585 (E).
S v Njadayi (1994) 5 BCLR 90 (E).
S v Melumzi Christian Nkombisa and Others (Unreported) 02 March 2017 Case No CA&R
04/2017 ECHC.
S v Nwabunwanne 2017 (2) SACR 124 (NCK).
S v Porthen (2004) 2 SACR 242 C.
S v Pienaar (2010) Namibian High Court [CA 30/2010] 135 (5 October 2010).
S v Mbele1996 (1) SACR 212 (W).
52
BIBLIOGRAPHY
ARTICLES
Axam ‘’If the Interests of Justice Permit: Individual Liberty, the Limitations Clause, and
the Qualified Constitutional Right to Bail’’ 2001 17 South African Journal on Human Rights
320.
Ballard “A statute of liberty? The right to bail and a case for legislative reform” 2012 SACJ
24.
Bursey “Time for return to sanity” 1999 De Rebus 33.
Chaskalson and De Jong “Bail” 2009 Criminal (in)justice, Pretoria: Institute for Security
Studies 88.
Cowling “The incidence and nature of an onus in bail applications” 2002 SACJ 176.
De Villiers “Problematic aspects with regard to bail under South African Law: The reverse
onus provisions and the admission of the evidence of the applicant for bail at the later
criminal trial revisited” 2015 1 International Journal of Law, Crime and Justice 17.
Ndlovu “Mixed reactions about bail new law” December 1998 371 De Rebus 21.
Omar “The unfair assessment of flight risk in bail hearings” 2016 57 SA Crime Quarterly
27 28.
Scharf and Tshehla “Stumbling at the First Step - Lost Opportunity in the Transformation
of the South African Justice System” 2003 Acta Juridica 160.
South African Law Commission (1994) Report on bail reform in South Africa Project 66
Pretoria.
Steyn “Pre-Trial detention: Its impact on crime and human rights in South Africa” 2000 4
Law, Democracy and Development 209.
53
Steytler “Right to freedom” in Steytler Constitutional Criminal Procedure (1998) 143.
TREATISES
Matshoba Bail and the presumption of innocence: A critical analysis of Section 60(1-11)
of the Criminal Procedure Act 51 of 1977 (Unpublished masters treatise, University of
Western Cape) 2012 14.
LOOSE LEAFS
Du Toit “Chapter 9 Bail” in Commentary on the Criminal Procedure Act (2018) 22.
Hiemstra “bail” in Hiemstra’s Criminal Procedure (2008) 10-1.
BOOKS
Currie and De Waal The Bill of Rights Handbook 6ed (2013).

Van der Berg Bail: A Practitioner’s Guide 3ed (2012).
Geldenhuys, Joubert, Swanepoel, Terblanche and Van Der Merwe Criminal Procedure
Handbook 11ed (2014).
INTERNET SOURCES
(Undated)http://ipproducts.jutalaw.co.za/nxt/gateway.dll/ccpa/216/289/293?f=templates
$fn=default.htm (accessed 24 May 218).
Jason Felix “Calls for tougher action against drunk drivers” (6 November 2018)
https://www.iol.co.za/capeargus/motoring/calls-for-tougher-action-against-drunk-drivers-
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http://www.prisonstudies.org/country/south-africa (accessed 3 December 2018).
54
Alexis Haden “South Africa crime stats 2018: The biggest increases and decreases” (12
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18.pdf (accessed 3 December 2018) 14.
55

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THE INTERESTS OF JUSTICE IN BAIL

Submitted in partial fulfilment of the requirements for

Supervisor: Prof. Deon Erasmus

262 The (relevant) challenged provisions 12

2 6 2 (i) Separation of powers 12

2 6 2 (ii) The preventive measures and the interests of justice 13

2 6 2 (iv) Reverse onus provisions 14

CHAPTER 3: INTERESTS OF JUSTICE IN BAIL PROCEEDINGS 17

32 Interpretation of the interests of justice concept 17

33 Interests of justice in section 60 19

34 Committing of further offences 23

35 Flight risk and evading trial 23

36 Attempt to interfere with the state’s case 25

37 Jeopardising the criminal justice system 26

38 Disturbing the public order 27

39 Interests of justice versus personal circumstances of the accused 28

3 10 The right to freedom of the person and the interests of justice 29

CHAPTER 4: COURTS AND THE INTERESTS OF JUSTICE 33

42 Role of the courts 33

43 Standard by which courts are to carry their roles 36

CHAPTER 5: ONUS PROVISIONS AND THE INTERESTS OF JUSTICE 39

52 Onus provisions prior to the amendments 39

54 Applicable schedules in determining an onus 41

541 (i) Schedule 1 41

542 (ii) Schedules 5 and 6 42

55 Section 60(11)(a) and (b) 43

551 Section 60(11)(a) 43

552 Section 60(11)(b) 43

56 Interpretation of section 60(11) 43

57 Criticism against section 60(11) 44

INTRODUCTION AND OVERVIEW OF THE STUDY

1 S v Hlopane 1990 (1) SA 239 (O) 242D.

1 2 Objective of the study

In Chapter Six the research is summarised and conclusions are drawn.

THE DEVELOPMENT OF THE CONCEPT ‘’INTERESTS OF JUSTICE’’

2 2 Interests of justice in bail applications under common law

12 Du Toit “Bail” in Commentary on the Criminal Procedure Act (2018) 22.

2 3 The Constitution of the Republic of South Africa (the interim Constitution)

21 S v Acheson supra 822B–823C.

2 4 The Constitution of the Republic of South Africa 1996 (the Constitution)

35 De Lange v Smuts NO 1998 (3) SA 785 (CC) par [23].

44 Du Toit in Commentary on the Criminal Procedure Act 3.

2 6 Constitutional challenge to the amendments

2 6 1 Introduction to the discussion of S v Dlamini68

2 6 2 The (relevant) challenged provisions

(i) Separation of powers

69 S v Fourie (1973) 1 SA 100 (D) 102H.

(ii) The preventive measures and the interests of justice

80 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra par [43].

(iv) Reverse onus provisions

86 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat supra par [54].

INTERESTS OF JUSTICE IN BAIL PROCEEDINGS

3 2 Interpretation of the interests of justice concept

119 Criminal Procedure Act 51 of 1977.

3 3 Interests of justice in section 60129

126 Cowling 2002 SACJ 188.

138 Cowling 2002 SACJ 177.

141 1997 (1) SACR 221 (C).