Authored By: Nkagiseng Mpafudi
University of Witwatersrand
Introduction
The question of bail remains one of the most contested issues in South African criminal procedure. On the one hand, an accused person enjoys the constitutional rights to dignity, freedom, and the presumption of innocence. On the other hand, the state bears an equally compelling constitutional obligation to protect victims and the broader public from violence and harm. The difficulty lies in determining where the balance should be struck before guilt has been established by a court of law.[1]
Public concern over bail decisions has intensified in circumstances where accused persons released on bail have allegedly intimidated witnesses, committed further offences, or caused victims to fear for their safety. Equally concerning, however, is the continued detention of accused persons who have not been convicted and who may eventually be acquitted after spending lengthy periods in custody awaiting trial.[2] Pre-trial detention therefore presents a constitutional dilemma: it may be necessary to protect society, but it also amounts to a significant limitation of personal liberty before criminal responsibility has been proven.
The Constitutional Court confronted this tension in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat, where it recognised that pre-trial detention constitutes a serious invasion of personal freedom and can only be justified where the interests of justice require detention.[3] The Court emphasised that the constitutional right to be released from detention if the interests of justice permit does not create an absolute entitlement to bail but requires courts to undertake a careful balancing exercise.[4]
Similarly, in Carmichele v Minister of Safety and Security, the Constitutional Court stressed that the state bears positive obligations under the Constitution to protect individuals from violent crime and that failures by police and prosecutorial authorities in bail-related decisions may expose vulnerable persons to serious harm.[5] Although Carmichele was not a bail appeal, it underscored the constitutional significance of victim protection within the criminal justice system.
This article asks whether the South African bail regime achieves an appropriate balance between the accused’s right to liberty and the protection of victims and the public. It argues that, while the constitutional and statutory framework is no sound in principle, its practical application is weakened by inconsistent judicial practice, weak risk-assessment methods, and inadequate protections for victims and witnesses.
The Constitutional and Legislative Foundations of Bail
Liberty and the Presumption of Innocence
Personal liberty and the presumption of innocence are core constitutional values. Section 12(1)(a) of the Constitution guarantees that everyone has the right not to be deprived of freedom arbitrarily or without just cause; sections 35(1)(f) and 35(3)(h) entitle arrested and detained persons to release if the interests of justice permit and preserve the presumption of innocence.[6] These provisions make pre‑trial detention an exceptional measure requiring cogent justification. The constitutional significance of these rights extends beyond mere procedural protections. The presumption of innocence reflects the principle that individuals should not suffer punishment before the state has established guilt beyond a reasonable doubt.[7] Deprivation of liberty before trial therefore constitutes an exceptional measure requiring proper justification.
In S v Dlamini, the Constitutional Court recognised that detention pending trial can have severe consequences, including the loss of employment, disruption of family relationships, and reputational damage.[8] Kriegler J described pre-trial detention as a substantial invasion of personal freedom and warned that such detention should not be imposed merely because a person has been accused of an offence.[9]
The constitutional commitment to liberty therefore establishes a general presumption in favour of release. Detention is constitutionally permissible only where competing considerations render it necessary and justifiable.
The Statutory Regulation of Bail
The Criminal Procedure Act 51 of 1977 gives legislative effect to these constitutional rights.[10] Section 60 of the Act governs bail applications before courts and provides that an accused person shall be released on bail where the court is satisfied that the interests of justice permit release.[11]
The legislation requires courts to consider various factors, including the likelihood that the accused will evade trial, interfere with witnesses or evidence, commit further offences, undermine the criminal justice system, or disturb public order.[12] These factors recognise that the interests of justice encompass not only the rights of the accused but also the interests of victims, witnesses, and society generally.
The Act also creates differentiated bail regimes for serious offences. In Schedule 5 matters, an accused bears an evidentiary burden to satisfy the court that the interests of justice permit release.[13] For Schedule 6 offences, the accused must establish exceptional circumstances justifying release.[14]
These provisions represent a deliberate legislative attempt to balance liberty and public safety. However, they also demonstrate Parliament’s willingness to shift the practical burden towards detention in cases involving serious offences.
The Meaning of the ‘Interests of Justice’
The phrase ‘interests of justice’ lies at the heart of South African bail jurisprudence. Yet the concept remains inherently broad and flexible. The Constitutional Court in Dlamini explained that the inquiry requires a value judgment in which competing constitutional interests are weighed against one another.[15]
The breadth of the concept is both its strength and weakness. Flexibility allows courts to consider the unique circumstances of each case. However, the absence of a structured methodology creates the possibility of inconsistent decisions and differing interpretations among judicial officers.[16]
The South African Law Reform Commission has repeatedly observed that bail decisions vary significantly across courts and are often influenced by disparities in available information, differing judicial approaches, and varying perceptions of public interest.[17] The challenge is therefore not the absence of legal principles but the practical difficulty of applying those principles consistently.
III. Judicial Development of the Balance Between Liberty and Protection
Constitutional Protection of Liberty
The Constitutional Court’s decision in S v Dlamini remains the leading authority on bail and constitutional rights. The applicants challenged the constitutionality of provisions imposing reverse onuses in serious offences and argued that the provisions violated the right to liberty and the presumption of innocence.[18]
The Court accepted that detention before trial limits constitutional rights but held that such limitations may be justified where necessary to protect legitimate public interests.[19] Importantly, the Court rejected the notion that refusal of bail constitutes punishment. Instead, detention is preventative and seeks to secure the proper administration of justice and public safety.[20]
The reasoning in Dlamini has nevertheless attracted criticism. Although the Court correctly recognised the importance of liberty, its acceptance of reverse onuses in Schedule 5 and Schedule 6 offences arguably weakens the practical force of the presumption of innocence.[21] Indigent accused persons frequently struggle to demonstrate exceptional circumstances and may remain incarcerated not because they present a genuine danger but because they lack the resources necessary to satisfy the evidentiary burden.[22]
Furthermore, while the Court emphasised that detention must remain exceptional, subsequent practice suggests that detention has increasingly become routine in certain categories of offences. The constitutional balance envisaged by Dlamini has therefore not always translated into consistent practice.
Public Protection and Positive Constitutional Duties
The importance of public protection is illustrated by Carmichele v Minister of Safety and Security. The accused had been charged with serious sexual offences and had previously demonstrated violent tendencies. Despite these circumstances, the investigating officer and prosecutor failed to place relevant information before the court during bail proceedings. After being released, the accused brutally attacked the plaintiff.[23]
The Constitutional Court held that the state bears positive obligations under sections 7(2), 10, 11 and 12 of the Constitution to protect individuals from violations of their rights by private actors.[24]. The Court concluded that the common law should be developed to recognise state accountability where negligent omissions expose individuals to preventable harm.[25]
Although Carmichele was not concerned with whether bail should have been granted, it carries profound implications for bail jurisprudence. The judgment recognises that failures by police and prosecutors to provide relevant information may undermine the court’s ability to assess risk accurately.
However, Carmichele should not be interpreted as endorsing automatic detention whenever public safety concerns arise. The judgment does not displace the presumption of innocence or create a presumption against bail. Instead, it highlights the necessity of informed decision-making and meaningful participation by state officials in the bail process.[26]
The Judicial Assessment of Risk
Subsequent cases have sought to refine the balancing exercise required by section 60.
In S v Petersen, the court emphasised that the seriousness of the charge cannot by itself justify detention and that all relevant circumstances must be considered holistically.[27]The judgment appropriately recognised that detention based solely on the nature of the offence risks undermining the constitutional presumption of innocence.
Similarly, in S v Shongwe, bail was refused because of concerns regarding witness intimidation and interference with the administration of justice.[28]The case illustrates the legitimate need to protect victims and preserve the integrity of criminal proceedings.
Yet both decisions reveal a persistent difficulty. Courts are frequently required to predict future behaviour on the basis of incomplete information. Assessments concerning the likelihood of reoffending or witness intimidation often rely heavily on the seriousness of the charge, previous convictions, and prosecutorial submissions. There is no standardised framework guiding the evaluation of risk.
Consequently, judicial discretion may produce inconsistent outcomes. Similar cases may yield different decisions depending upon the individual judicial officer and the information available at the hearing.
Practical Deficiencies in the Existing Bail System
Inconsistent Decision-Making
The most significant weakness of the current bail system is inconsistency.
The broad nature of the interests of justice inquiry means that judicial officers enjoy extensive discretion. While discretion is necessary, excessive discretion may produce unequal outcomes.[29] Similar accused persons may receive different bail outcomes depending on the jurisdiction, the quality of legal representation, and the information available to the court.
The South African Law Reform Commission has identified a lack of uniform standards in bail decision-making and has recommended improved guidance and information-sharing mechanisms.[30] Such inconsistencies undermine public confidence and create uncertainty regarding the practical operation of constitutional rights.
Deficiencies in Risk Assessment
Section 60(4)(d) requires courts to determine whether an accused is likely to commit further offences if released.[31]This enquiry is inherently predictive and exceptionally difficult.
South African courts do not generally utilise structured risk assessment instruments. Instead, they rely primarily upon criminal records, the nature of the offence, and submissions made by legal representatives.[32]Factors such as mental health, substance abuse, employment stability, family support structures, and community ties are often insufficiently explored despite their recognised relationship to offending behaviour.
International scholarship demonstrates that unstructured predictions of dangerousness are frequently inaccurate.[33]Consequently, both liberty and public safety may suffer. Low-risk accused persons may be detained unnecessarily, while genuinely dangerous individuals may be released without adequate safeguards.
Victims and Participation in Bail Proceedings
Although the CPA permits victims to make representations concerning their safety interests, practical barriers significantly limit effective participation.[34]
Victims frequently lack legal representation and may not receive adequate information regarding the bail process. Research further indicates that victims often perceive bail proceedings as prioritising the rights of accused persons while paying insufficient attention to their safety concerns.[35]
This concern resonates with the Constitutional Court’s observations in Carmichele, where failures by state officials effectively deprived the complainant of meaningful protection. The legitimacy of the criminal justice system depends not only upon protecting accused persons from unjustified detention but also upon ensuring that victims feel adequately protected by legal processes.
Over-Detention and Awaiting-Trial Prisoners
The converse problem is the continued detention of large numbers of awaiting-trial prisoners.
The Judicial Inspectorate for Correctional Services has repeatedly reported significant numbers of remand detainees who remain incarcerated for extended periods while awaiting trial.[36]Delays within the criminal justice system mean that some accused persons spend months or years in detention before guilt is determined.
Such prolonged detention undermines the presumption of innocence and may amount to punishment in practical terms, notwithstanding its formal classification as preventative detention.[37] The constitutional legitimacy of bail therefore depends not merely upon the legal framework but also upon the efficiency of the broader criminal justice system.
Comparative Perspectives and the Case for Reform
Comparative experiences demonstrate that it is possible to preserve liberty while improving public protection.
England and Wales recognise a general right to bail but require courts to provide reasons where bail is refused and make extensive use of conditions such as reporting obligations and electronic monitoring.[38]
The United States has increasingly experimented with evidence-based risk assessment instruments designed to predict the likelihood of reoffending and failure to appear. Although these tools have attracted criticism regarding potential bias, they demonstrate the feasibility of structured decision-making.[39]
Kenya’s Bail and Bond Policy Guidelines similarly provide judicial officers with detailed criteria for assessing risk and require reasoned decisions.[40]These developments suggest that discretion need not operate in the absence of guidance.
South Africa would benefit from adopting structured bail assessment guidelines tailored to local conditions. Such reforms should not replace judicial discretion but should provide courts with reliable information concerning risk factors.
Improved information-sharing between police, prosecutors, probation officers and courts would further enhance decision-making. Strengthening victim participation and witness protection mechanisms would also reduce the need to rely exclusively on detention as a means of protecting vulnerable individuals.
Finally, judicial officers should be required to provide comprehensive reasons for bail decisions. Detailed reasons would facilitate meaningful appellate review, encourage consistency, and enhance public confidence in the criminal justice system.
Conclusion
South Africa’s constitutional and legislative framework governing bail is fundamentally sound. The Constitution recognises both the right to liberty and the state’s obligation to protect individuals from violence and harm. The Criminal Procedure Act similarly seeks to balance the interests of accused persons, victims, and society through the flexible interests of justice inquiry.
However, the practical application of this framework remains problematic. Courts are frequently required to make predictive judgments without adequate information or structured methodologies. Victims often feel marginalised, while many accused persons continue to experience prolonged detention despite the presumption of innocence.
The challenge is therefore not the absence of constitutional principles but the inadequacy of the mechanisms used to implement those principles. The balance between liberty and public safety can only be achieved where judicial officers have access to reliable information, structured guidance, and effective protective measures.
A constitutional democracy committed to both freedom and security cannot afford a bail system that fails either victims or accused persons. The legitimacy of South Africa’s criminal justice system ultimately depends upon its ability to protect society without sacrificing the constitutional commitment to liberty that lies at the heart of the rule of law.
Bibliography
Cases
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 (4) SA 623 (CC)
S v Petersen 2008 (2) SACR 355 (C)
S v Shongwe 2003 (2) SACR 28 (W)
Legislation
Bail Act 1976 (England and Wales)
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
Books
Currie I and De Waal J The Bill of Rights Handbook 6 ed (Juta 2013)
Du Toit L Bail: A Practitioner’s Guide (Juta 2019)
Du Toit E et al Commentary on the Criminal Procedure Act (Juta RS 68, 2025)
Van Zyl Smit D and Dunkel F Imprisonment Today and Tomorrow (Kluwer Law International 2001)
Journal Articles
Mayson SG ‘Bias In, Bias Out’ (2019) 128 Yale Law Journal 2218
Monahan J ‘The Case for Actuarial Risk Assessment’ (2008) 8 Psychology, Public Policy and Law 122
Van der Spuy E and Parmentier S ‘Pretrial Detention in South Africa: A Review’ (2018) 31 South African Journal of Criminal Justice 1
Reports and Policy Documents
Judicial Inspectorate for Correctional Services Annual Report 2024/2025
Kenya Judiciary Bail and Bond Policy Guidelines (2015)
South African Law Reform Commission Issue Paper 24: Project 73 – Simplification of Criminal Procedure (Bail) (2002)
Artz L and Smythe D Bridging the Divide: A Report on the Experiences of Court Users in Four Magistrates’ Courts(University of Cape Town 2007)
Before submitting, I would recommend only three final checks: (1) convert the footnotes to proper OSCOLA footnotes in Word, (2) insert page numbers and your name/student number as required by your faculty guide, and (3) confirm the word count. Substantively, this is now structured like a legal journal article: problem → legal framework → case analysis → critique → comparative perspectives → reform → conclusion.
[1] Constitution of the Republic of South Africa, 1996 ss 12 and 35.
[2] Criminal Procedure Act 51 of 1977 s 60.
[3] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) paras 11–12.
[4] Dlamini paras 61-64
[5] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) paras 44–45, 62.
[6] Constitution of the Republic of South Africa, 1996 ss 12(1)(a), 35(1)(f), 35(3)(h).
[7]I Currie and J de Waal The Bill of Rights Handbook 6 ed (Juta 2013) 741.
[8]Dlamini para 11.
[9] Dlamini para 76.
[10] Criminal Procedure Act 51 of 1977.
[11]Criminal Procedure Act 51 of 1977 s 60(1)(a).
[12]Criminal Procedure Act 51 of 1977 s 60(4).
[13]Criminal Procedure Act 51 of 1977 s 60(11)(b).
[14]Criminal Procedure Act 51 of 1977 s 60(11)(a).
[15] Dlamini para 64.
[16] L du Toit Bail: A Practitioner’s Guide (Juta 2019) 23.
[17] South African Law Reform Commission Issue Paper 24: Project 73 – Simplification of Criminal Procedure (Bail)(2002) 15.
[18]Dlamini para 1-10
[19]Dlamini paras 60–65.
[20]Dlamini para 76
[21]Currie and De Waal (n 9) 744.
[22]D van Zyl Smit and F Dunkel Imprisonment Today and Tomorrow (Kluwer Law International 2001) 212.
[23]Carmichele paras 2–5
[24]Carmichele paras 44–45.
[25]Carmichele paras 56–62.
[26]Carmichele para 63.
[27]S v Petersen 2008 (2) SACR 355 (C) para 55.
[28]S v Shongwe 2003 (2) SACR 28 (W) para 10.
[29] L du Toit et al Commentary on the Criminal Procedure Act (Juta RS 68, 2025) 9–31.
[30] South African Law Reform Commission (n 19) 16–17.
[31] Criminal Procedure Act 51 of 1977 s 60(4)(d).
[32] E van der Spuy and S Parmentier ‘Pretrial Detention in South Africa: A Review’ (2018) 31 South African Journal of Criminal Justice 1, 14.
[33] J Monahan ‘The Case for Actuarial Risk Assessment’ (2008) 8 Psychology, Public Policy and Law 122, 125.
[34]Criminal Procedure Act 51 of 1977 s 60(2B).
[35]L Artz and D Smythe Bridging the Divide: A Report on the Experiences of Court Users in Four Magistrates’ Courts(University of Cape Town 2007) 29.
[36]Judicial Inspectorate for Correctional Services Annual Report 2024/2025 43–45.
[37] Dlamini para 76.
[38]Bail Act 1976 ss 3–4.
[39]Sandra G Mayson ‘Bias In, Bias Out’ (2019) 128 Yale Law Journal 2218, 2225.
[40]Kenya Judiciary Bail and Bond Policy Guidelines (2015) 12–18.
