STATEMENT BY THE MINISTER OF JUSTICE, MR DULLAH OMAR, ON THE NEW BAIL LEGISLATION
Issued by: SA Communication Service
15 September 1995
The legislation passed by the National Assembly and Senate this week is the result of many months of deliberation. Its purpose is to provide clear guidelines to courts when considering bail applications within the context of the Constitution and the building of a human rights culture. It is necessary to send a clear message to criminals that crime, particularly crime with violence, will not be tolerated and that the right of communities to safety is paramount.
Following submissions by the South African Law Commission and discussions with members of the various legal fraternities, legislation was drafted and introduced into Parliament. In the course of discussions in Parliament and with myself, some significant changes were introduced to the legislation.
The resultant legislation is in line with the Chapter on Fundamental Rights in the Constitution, yet introduces a number of important clarifications. Thus although the law recognises the right of an arrested person to be released with or without bail unless the interests of justice require otherwise, the interests of justice are given definition and substance.
Some important features of the legislation include:
1 The right of the court to postpone bail proceedings
The legislation grants the court the right to postpone any bail proceedings for a period up to seven days at a time if it has insufficient evidence or information to reach a decision; if the state requires a reasonable opportunity to procure evidence that may be lost if bail is granted or if it appears to the court that a postponement is in the interests of justice.
2 The question of onus
Recently, under the Constitution, presiding officers have increasingly played an inquisitorial role in bail proceedings. The legislation confirms this role and, furthermore, places an obligation on presiding officers to raise the question with regard to the release of the accused person, with or without bail.
However, in respect of very serious offences, the court is now empowered to order that the accused satisfies the court that the interests of justice do not require his or her detention. This onus relates to offences which are very narrowly defined in the legislation and include treason, murder involving the use of a dangerous weapon or firearm, rape, robbery with aggravating circumstances and robbery of a motor vehicle, dealing in dangerous dependence producing drugs and money laundering, offences relating to arms trafficking and serious economic offences.
To many, this may seem a drastic step. But it is one which is necessary in view of the increase in brutal crime and the lack of respect for human life and property. This criminal environment, clearly a legacy of our past, cannot be allowed to destroy the human rights culture we are at pains to build.
3 The right of appeal and the cancellation of bail
Previously, while the accused had the right to appeal in respect of a decision affecting his or her release, the state had no such right. The new legislation gives the state the right to appeal against a decision to grant a release, with or without bail. Also, while under the previous legislation a court may cancel the bail of an accused if it has information under oath that the accused is about to evade justice or abscond, the grounds for the cancellation of bail are now extended - allowing the state to appeal or request a new bail hearing if new evidence or information justifies this.
I would like to stress that the new bail legislation is just one element of the overall strategy to combat crime. Legislation with regard to the treatment of juveniles and the issue of sentencing are presently being considered, and the Department of Correctional Services is looking at the question of parole and releases.
We also need to view this legislation in the context of the important work being done by the Department of Safety and Security whose efforts to involve local communities through the country in programmes designed to build safety and security as part of the RDP.
We must remember, however, that we cannot fight crime without, at the same time, addressing its causes. There is no doubt that the elimination of crime will ultimately depend on social and economic transformation and upliftment together with a broad public accep- tance of normal authority and a new morality. In other words, we need a legitimate, credible police and justice system - a system that, in the view of the people, is seen as committed to the protection of the rights of all citizens - and the building up of respect amongst our communities for the dignity of each human being.
For more information, please contact Susan de Villiers 021-457506 or page 021-215420 code 27989