Authored By: Lindelwa Lerato Mlaba
University of South Africa
South Africa continues to become one of the most countries that faces the highest rate of gender-based violence (GBV) cases in the world, with incidents of domestic violence, sexual offences, and physical abuse placing thousands of women and children at risk each year.[1]A particularly controversial aspect of the criminal justice process is the granting of bail to individuals accused of GBV-related offences. While bail is intended to protect the constitutional right to liberty and the presumption of innocence, many victims fear that an accused person released before trial may intimidate, threaten or even harm them again.[2]
The Constitution of South Africa, 1996, ensures the rights of arrested persons, including the right to be released from detention if the interests of justice permit.[3] It also protects the rights to dignity, equality, freedom, and security of person. These rights are significant for victims of gender-based violence.[4] Now, the challenge lies in balancing these competing constitutional interests in a manner that promotes both justice and public safety.
Bail is a fundamental component of South Africa’s criminal justice system, intended to balance the constitutional rights of an accused person with the interests of justice and the protection of society. Bail enables an accused person to remain at liberty pending trial where the court is satisfied that their release will not endanger the public.[5]
The constitutional foundation of bail is found in section 35(1) of the Constitution, which provides that every arrested person has the right to be released from detention if the interests of justice permit, provided that there are reasonable conditions.[6] This right reflects the constitutional values of human dignity, freedom, and the presumption of innocence, recognising that an accused person should not be punished before being convicted by law or court.[7] The legislation governing bail is the Criminal Procedure Act 51 of 1977 section 60, which requires courts to determine whether the interests of justice permit the release of an accused person.[8] In order to make this determination, the court must consider various factors, including whether the accused may evade trial, interfere with witnesses, undermine the criminal justice process or potentially commit more offences if released.[9] South African law further distinguishes between ordinary offences and more serious offences listed in Schedule 5 and 6 of the Criminal Procedure Act. Where an accused is charged with a schedule 5 offence, the burden shifts to the accused to satisfy the court that the interests of justice permit release on bail.[10] While in Schedule 6 matters, the burden requires the accused to demonstrate the existence of exceptional circumstances that justify their release.[11] Many serious offences relating with gender-based violence, including rape fall within these schedules.
The Constitutional Court has emphasised that bail proceedings require careful balancing of competing constitutional rights. In S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat, the court confirmed that although personal liberty is a fundamental right, it is not absolute and may be limited where the interests of justice require continued detention.[12] The court further observed that bail proceedings are not intended to determine guilt or innocence, but rather assess whether releasing an accused person would jeopardise public safety. This approach reflects the constitutional obligation placed upon courts to consider both rights of the accused and interests of the public. This constitutional duty is reinforced by the decision in Carmichele v Minister of Safety and Security, where the Constitutional Court held that the State bears a constitutional obligation to protect individuals, particularly women and children, from violent crime.[13] The persistence of violence committed by accused persons who have been released on bail has raised concerns about whether the current framework protects victims of GBV, the major concern is the safety of the victims.
The recurring incident of accused persons committing further crimes after being granted bail has brought about public debate, whether the current bail system adequately protects victims.[14] While each bail application is to be decided on its own merits, the continued victimisation of complainants demonstrates that legal protections are not always active in practices. Although section 60 of the Criminal Procedure Act provides various factors that have to be considered before granting of bail, predicting future violent behaviour remains difficult as patterns may not be immediately apparent.[15]
Victims of GBV often remain emotionally or socially connected to the accused, making them vulnerable to threats, coercion or further abuse. The biggest concern is intimidation of victims and witnesses following the release of the accused person on bail. Fear of retaliation may discourage victims from reporting breaches of bail conditions, cooperating with prosecutors or testifying during trial, undermining both safety and effective administration of justice.[16] Another challenge lies in the enforcement of bail conditions. Courts impose conditions prohibiting contact with complainants or requiring the accused to report to police station regularly.[17] However, the effectiveness of these conditions depends upon consistent monitoring and regular enforcement. Limited policing resources and delays in responding to reported violations reduces the protective value of these conditions, leaving victims exposed despite the safeguards imposed by the court.
The challenges associated with gender-based violence cases demonstrate that legal reform should focus not only on legislative amendments but also on improving the implementation of existing laws. South Africa’s bail effectiveness depends on consistent judicial application, adequate institutional support and a victim-centred approach to criminal justice.[18]
An adoption of more comprehensive risk assessment procedures during bail applications involving GBV offences would be a good reform to a structured assessment of bail consideration factors, assisting judicial officers to determine whether the release of an accused person presents a huge risk to the victim and the public. Courts should have access to detailed information regarding the accused’s history, previous breaches of protection orders, previous crimes committed or any documented threats made against the complainant.
Victim participation in bail proceedings should be encouraged as victims possess valuable information regarding the likelihood of intimidation, harassment or further violence. Ensuring that prosecutors place victim concerns before the court would contribute to more informed judicial decision-making while ensuring that the accused’s right to a fair hearing is adhered to.[19] Conditions prohibiting communication with victims or restricting movement are only effective if compliance is regularly monitored. Stronger cooperation between the courts, the South African Police Service (SAPS), and prosecuting authorities would enable faster responses to alleged breaches of bail conditions and provide greater assurance to victims whose safety may remain at risk after the release of an accused.[20] A key reform would be the introduction of more structured risk assessment procedures during bail applications involving gender-based violence offences. More specialised training on the dynamics of domestic violence, victim vulnerability, risk assessment would enhance the ability of judicial officers to evaluate the circumstances that arise in GBV cases. Such training would promote greater consistency in bail decisions while ensuring that constitutional rights are balance with sensitivity to the reality of the victims. Strengthening victim protection does not mean abandoning the constitutional principles of presumption of innocence, instead it requires ensuring that these principles are applied alongside the right to human dignity, freedom, equality, and security of the person.
A criminal justice system must promote public confidence, fairness, uphold the rule of law, and provide meaningful protection to victims of gender-based violence.
Reference(S):
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
Domestic Violence Act 116 of 1998
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51
South African Police Service, Annual Crime Statistics 2024/2025
Statistics South Africa, Crime Against Women in South Africa (Statistical Release, 2024)
[1] Statistics South Africa, Crime Against Women in South Africa (Statistical Release, 2024); South African Police Service, Annual Crime Statistics 2024/2025.
[2] Criminal Procedure Act 51 of 1977 ss 60-71
[3] Constitution of the Republic of South Africa, 1996 s 35 (1) (f)
[4] Constitution of the Republic of South Africa, 1996, ss9, 10 and 12
[5] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) para 11
[6] Constitution of the Republic of South Africa, 1996 s 35(1)(f)
[7] Constitution of the Republic of South Africa, 1996 ss10, 12 and 35(3)(h)
[8] Criminal Procedure Act 51 of 1977 s 60
[9] Criminal Procedure Act 51 of 1977 s 60 (4)-(9)
[10] Criminal Procedure Act 51 of 1977 s 60(11)(b)
[11] Criminal Procedure Act 51 of 1977 s 60(11)(a)
[12] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) paras 11-14
[13] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) paras 44-45
[14] South African Police Service, Annual Crime Statistics 2024/2025
[15] Criminal Procedure Act 51 of 1977 s 60 (4)-(9)
[16] Domestic Violence Act 116 of 1998; Criminal Procedure Act 51 of 1977 s 60(4)
[17] Criminal Procedure Act 51 of 1977 ss 62-67
[18] Constitution of the Republic of South Africa, 1996 ss 9, 10, 12 and 35 (1) (f)
[19] National Prosecuting Authority, National Policy Directives and Standard Operating Procedures for the Management of Gender-Based Violence Matters
[20] Criminal Procedure Act 51 of 1977 ss 62-67
