Judging from the reaction in certain sectors of society when bail is granted to an accused arraigned on one or more counts involving serious offences, the granting of bail and the bail amount posted, is often equated with punishment while the latter only enter the equation after the trial when the court must decide what punishment would be just in the circumstances of the case. Probably due to the fact that many in society are not aufait (knowledgeable) with the law, coupled with the fact that courts are bound by legal principles and rules of law, sight is often lost of the basic purposes of bail namely, that where it is not necessary to keep an accused detained pending finalisation of his case, he may be released on bail.
In determining whether or not to grant bail, the court is required to balance competing interests. On one hand, the court must not unnecessarily keep an accused in detention, who might later be found not guilty for lack of evidence, while on the other hand, due consideration must be given to the risk of harm posed to the community if such person were to be released, or that he may reoffend or fail to appear before the court if not held in custody. The court thus has to balance the individual liberties of the accused against the interests of any victims, the effective administration of the criminal justice system, and the safety of the wider community. The difficult task is often harmonised by the granting of bail, but in addition, to attach conditions to ensure the accused’s reappearance for trial. Stringent conditions such as regular reporting to the police or a complete prohibition on travelling could be attached, all of which are aimed at making it difficult for the accused to abscond after being admitted to bail. There are however no guarantees, and as history has shown, even where bail had been set very high and coupled with impeding conditions, the accused notwithstanding, absconded.
On the contrary, there are also instances where the accused is charged with one or more serious offences like rape and murder for which he is merely warned to attend proceedings, and then stands trial. Though these cases are rare and not the norm, it notwithstanding shows that there are no hard and fast rules when it comes to the question whether bail should be granted or not, as each case must be decided on its own facts.
The underlining principle in the bail process is the presumption of innocence, which is fundamental to criminal law, and states that every person is presumed innocent until proven guilty by a court of law. The presumption of innocence is an important part of the rule of law and is enshrined in our Constitution in Article 12(1)(d) in that it guarantees the right to a fair trial, while Article 7 recognises the protection of liberty and states that no person shall be deprived of personal liberty, except according to procedures established by law. An inquiry by the court as to whether or not the accused must be granted bail is one such procedure envisaged in the Constitution. It is settled law that an accused has the right to apply for bail, but is not per se entitled to be admitted to bail. The presumption of innocence thus operates in favour of an accused (even where there is a strong prima facie case against him).
However, such rights are not absolute. Though a bail inquiry is deemed as pre-trial proceedings, the courts have held that the presumption of innocence operates both in bail proceedings and in the trial itself. I pause here to observe that bail proceedings are handed up into evidence during the main trial in order to show that the accused had given previous inconsistent evidence or contradicted himself, which could be valuable for the opposing party during cross-examination. When dealing with an unrepresented accused, it should however be borne in mind that the court, in order to ensure that the accused be given a fair trial, must inform the accused that he is not obliged to give self-incriminating evidence and may elect to remain silent.
Over the years, it has been established that an applicant in a bail application bears the onus of showing on preponderance of probability why he should be released on bail. Such onus does not violate an accused’s right to liberty and whereas the right to be released on bail is not entrenched in the Constitution, the placing of the onus on the accused is accordingly not unconstitutional in terms of Article 7 or 10. Accordingly, the State need only to prove a lawful arrest where after the accused has to satisfy the court on a balance of probabilities why he should be admitted bail namely, that he will not abscond, tamper with State witnesses and will not interfere with the general administration of justice.
The process of bail is governed by Section 60 of the Criminal Procedure Act 51 of 1977 by which an accused, who is in custody in respect of any offence, may apply to the court to be released on bail in respect of such offence, while the court under Section 61 of the Act is permitted to refuse bail on grounds of public interest and the interest of the administration of justice, the latter finding application even where the accused has proved to the satisfaction of the court that it is unlikely that he will abscond, interfere with any witnesses for the prosecution or with the police investigation.
• This article is an excerpt from a paper delivered by Judge Christi Liebenberg at the recently concluded First National Judicial Conference held at a local hotel in Windhoek.