In the context of the South African Constitution, the right to pre-trial release is protected under Section 35 (1) (f) of the Bill of Rights. This section states that every person who is arrested in respect of a criminal offense is entitled to apply to the court to be released on bail, and the court may grant bail on such conditions as it considers reasonable.
Historically, South Africa faced challenges related to pre-trial release and detention. Before 1994, the attorney-general had the power to prohibit the release of an accused on certain serious or “political offenses,” effectively removing the decision from the court’s discretion. However, given the value of freedom and security, including the right to bail, these rights were incorporated into the Interim Constitution.
I concur with submissions made by Meha Khiria.
We should be mindful that everyone is presumed innocent until proven guilty during bail application.
Section 50(6)(d) of the Criminal Procedure Act 51 of 1977 provides that every accused person to make an application for release from custody.
In addition, section 60(1)(a) of the CPA, also states that an accused person is entitled to be released on bail, if the court is satisfied that the interest of justice so permit. See S v Dlamini 1999 (2) SACR 51 (CC).
This is in accordance with section 35(1)(f) of the Constitution of the Republic of South Africa, 1996. Save to say that the Constitution is the supreme law.
Furthermore, section 12(1)(a) of the Constitution, also provides that everyone has the right to freedom and security.
In essence, standard of proof during bail application is based on the balance of probabilities as alluded in the matter of S v Viljoen 2002 (2) SACR 550 (SCA). Hence an accused person has to present exceptional circumstances. See S v Mokgoje 1999 (1) SACR 233 (NC).
Additional sources:
S v Bennett 1976 (3) SA 652 (C)
S v Peterson 2008 (2) SACR 355 (C)
S v Rudolph 2010 (1) SACR 262 (SCA)
De Rebus July 2023 "Bail Application: Are there exceptional circumstances?" www.derebud.org.za
Thesis of Makasana V "The onus of proof and presumption of innoncence in South African Bail jurisprudence" 2014
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