LISTEN: The granting of bail explained
South Africans have seen some of the worst criminal cases over the past few years.
From convicted murderer Oscar Pistorius to Sandile Mantsoe, who was convicted of the murder of his ex-girlfriend Karabo Mokoena in 2018, to 61-year-old Fita Kupe - who is accused of murdering three women and four children in Vlakfontein.
Questions have been raised after 21-year-old Nicholas Ninow, accused of raping an eight-year-old girl at a Dros in Silverton, was denied bail while a 55-year-old Valhalla teacher accused of sexually assaulting 24 children, between the ages of 10 and 14, was granted bail of R5000.
The granting of bail is usually met with fury from civil society, local community members, politicians and those directly affected by the crimes.
Criminal law expert Ulrich Roux says there needs to be a clear understanding around the issue of bail:
He says bail is granted if the person qualifies as someone who will stand trial and see it to its conclusion. It cannot be seen as a punishment and has a notion that the purpose is innocent until proven guilty, up until that point, the accused has the right to freedom.
Q: What is considered when granting bail to an accused person?
A: If a person qualifies for bail, they need to prove that they will not flee or evade trial, and will not commit any further crimes whilst they are released on bail, there is no reason to keep them in custody while they await their trial.
Q: What is the weight of public opinion when considering bail?
A: The accused needs to show that it is in the interest of justice to be released on bail and one of the factors taken into consideration when determining whether it is just to release them on bail is whether it will send shock and outrage into the community. But the most important factors remain whether the person will flee or the likelihood that the person will commit while released on bail.
Q: If an accused person has been denied bail, can they appeal?
A: Yes, they can either go on a bail appeal at a high court stating that they believe the magistrate made a mistake or they can bring a bail application to the same court on new facts that have come to light.
Q: What are the consequences of violating the conditions when bail is granted?
A: Bail can be revoked anytime by a magistrate and that person can be placed in custody until the matter is finalised.
The National Prosecuting Authority (NPA) Act goes further to state that when considering how much bail an accused person can pay, the magistrate needs to consider whether they are employed, how much they earn and their monthly expenses, including whether they will have to pay their attorney.
The money is paid to the police, who will have to pay it back when the person who has been granted bail comes back to court on the agreed date. If they don't appear, they do not get the money back.
Accused of serious crimes, such as murder, rape, and house robbery, are often denied bail if the reasons stated by Roux above apply.