South Africa: Western Cape High Court, Cape Town

The Act itself has raised a series of guidelines with regard to the question of the interest of justice. Section 60(4) says:

"The interest of justice do not permit the release from detention of the accused where one or more of the following grounds are established.

(a) Where there is a likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or commit a Schedule 1 offence.

(b) Where there is a likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial.

(c) Where there is a likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses (indistinct) destroy evidence.

(d) Where there is a likelihood that the accused, if he or she were released on bail, would undermine or jeopardise the objective of the proper functioning of the criminal justice system, including the bail system.

(e) Where, in exceptional circumstances, there is a likelihood that the release of the accused will disturb the public order or undermine the public peace or security."

In turn, each of these particular concepts is then given further content in section 60(5) and following; that is the architecture or the Act. I accept that, in the case such as present, the appellant (accused) is required to adduce evidence to show that the interest of justice permits his or her release. In short, there is an onus upon the appellant to provide that evidence.

In this case, the following occurred: Accused 6 hardly appears in the record at all; to the extent that the accused does appear on the record, his role begins with a reading of a statement into the record, in which the accused states under oath that he understands his rights. He is not married. He has been in a relationship for seven years with the mother of his youngest child He has three dependants, a child of one year and three months; a child of 14 years of age and an 18 year old child, all of them stay with their mother. He is self-employed and earns R1 500,00 per month. He states that he had one previous conviction, driving a vehicle without a driver's licence, for which he paid a fine of R500.00 and which offence was committed in 2005. That is essentially the extent of the statement, save for the fact that he avers that he would not endanger the safety of the public, any particular person and that he is prepared to pay bail in the amount of R500.00, which amount will be paid for by his brother.

There is some suggestion by the investigating officer that there were a series of crimes for which the accused (appellant) was under investigation. However, it is clear from the record that all of these charges have been withdrawn and, therefore, for the purposes of the case, save for the driving offence, the court had to accept that the appellant was possessed of "a clean record". The only other piece of relevant evidence is that the investigating officer was forced to concede that there was no suggestion in his view that any of the witnesses could be intimidated. There was no suggestion at all that the appellant would attempt to evade bail; or would attempt to undermine the objectives of the criminal justice system; that was clear.

What necessitates me placing all of this on record, is my dissatisfaction - and I say this regrettably - with the manner in which the magistrate sought to deal with this case. Bail, notwithstanding the restrictive constraints imposed upon this foundational principle of our criminal law in terms of section 60 of the Act, remains central to the criminal justice system. It is a notorious fact that our prisons are overcrowded and that awaiting trial prisoners suffer indignities of the most egregious kind, far more so, in many case instances that prisoners who have been convicted, and it is further a notorious fact that the conditions of convicted prisoners leaves a huge amount to be desired. These facts must, therefore, be taken seriously by the presiding officer.

It is not acceptable that the magistrate can utter a few perfunctory remarks, and then deny people their liberty in circumstances where they have not yet been convicted, without the provision of proper reasons. A magistrate is entitled to refuse bail. The law is clear: an onus in such a circumstance rests from the appellant. I also appreciate that magistrates are, in many instances, overworked and under severe pressure. That does not excuse the quality of a judgment with which I have been confronted in this case, in which no substantive reasons are offered for any of the accused and which they are taken in some globular fashion, as if the dignity of each individual is irrelevant in the consideration of the case. I found this deeply distressing and most unfortunate and wish to place on record that it should not happen again. It may be that short reasons suffice but reasons must be given in each case why bail is refused, because it is an individualised process, even if the accused are linked to each other or allegedly so, because of the charges brought against them.

In this case there is absolutely no suggestion on the record that any of the requirements under section 60(4) will be breached. There is no question, on the evidence, that it was in the interests of justice, often weighing the countervailing principle of the liberty of an individual who has yet not been convicted against the considerations imposed by the Act that bail should have been granted. BAIL WILL, THEREFORE. BE GRANTED IN THIS CASE in terms of an order which I understand will be agreed upon by the parties.

DAVIS, J