MEDIA RELEASE BY MINISTER A M OMAR MP, MINISTER OF JUSTICE IN RESPECT OF THE REFORMATION OF THE SOUTH AFRICAN LAW PERTAINING TO BAIL
Issued by: Ministry of Justice
On the 7th of September 1994, I announced that I had requested the South African Law Commission urgently to investigate certain facets in the administration of justice, including an investigation into the law pertaining to bail. This investigation has now been completed and a report on the reformation of the law pertaining to bail was tabled in Parliament today.
The Law Commission is of the opinion that the reform of our bail law demands a healthy balance between the rights of the arrested person, as contained in chapter 3 of the Constitution (the Charter of fundamental Rights), and the right of the community to safety and the effective combating of crime. The Law Commission has also pointed out the limitation principles contained in section 33(1) of the Constitution. In terms of these principles, legislation may limit the rights and liberties of the individual if it is reasonably justifiable in an open and democratic society based on freedom and equality, and is also necessary. Bail may, for instance, be refused if the interests of justice so demand. (Section 25(2)(d) of the Constitution).
The Law Commission has made specific recommendations to limit the law pertaining to bail. It recommends that section 60 of the Criminal Procedure Act be amended to lay down clear guidelines which the court must consider when a decision on the freedom of an accused has to be made. According to the Law Commission this will result in legal certainty.
The Law Commission is also of the opinion that provision must be made for the right to legal representation during bail applications, and that presiding officers must be compelled by law to investigate applications for the release of accused persons (with or without bail), to ensure that justice is done.
The South African community is currently afflicted with a high incidence of serious crime, to which everybody, including the public and the media, have reacted strongly.
In this respect, I would like to reiterate the Government's commitment to the combating of crime and my support, of the public viewpoint on its right to safety and security. The combating of crime must, however, take place within the framework of the charter of fundamental rights to which we are committed. It is against this background that I urge the community to report crime and to come forward to give evidence in our courts. Without their co-operation crime cannot be combated, and the prevalent wave of criminality will continue.
I have instructed the Department of Justice to draft law amendments based on the proposals of the Law Commission as a matter of urgency. The proposed amendments will, on the one hand, bring our bail law into line with the principles of the Charter of Fundamental Rights and, on the other, provide presiding officers with better guidelines, giving them the power to refuse bail in appropriate cases, without being arbitrary.
When drawing up this legislation the Department will, in addition to the proposals of the Law Commission, also consider various other proposals that have been made to us. I welcome any further comments, suggestions and further contributions.
I hope to introduce draft legislation in this regard to Parliament soon.
ISSUED BY THE MINISTER OF JUSTICE
30 March 1995
CAPE TOWN
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