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WHAT ARE THE CHALLENGES TO ACCESSINGBAIL IN THE CRIMINAL JUSTICE SYSTEM?
ISSUE Findings and Comments
Proof of address andidentity validation
To make a bail application, the applicant must supply proof of identity and a formal address. This is a real challenge in SouthAfrica, where so many people cannot supply this information.
In cases that need coordination from a range of government bodiessuch as departments of Home Affairs and Social Development, theeducation authorities and police services, the process can take upto six weeks.
Setting affordable bail that is appropriate for the financialcircumstances of the bail applicant is a severe challenge in SouthAfrica, despite legislation providing for a two-stage bail enquiry.
This two-stage enquiry obliges judicial officers to consider anaccused’s financial circumstances when deciding on an appropriatebail condition.3.
There is a reluctance to implement the option of non-financial bail,even when there is no legal justification for withholding non-financial bail, as judicial officers fear the accused absconding.
Although there are no official statistics on this, some stakeholdershave indicated that 30%-40% of those who get non-financial bailconditions in their courts abscond and do not return for trial.
Section 63 Bail Protocol
The protocol is not being effectively implemented. The protocolallows for heads of prisons to refer people in remand back to courtto apply for amended bail conditions where there is a threat todignity due to overcrowded conditions. However, heads of prisonsare reluctant to expose themselves to the kind of civil action thatcould result from admitting that there is a potential threat tohuman dignity based on overcrowding in their facilities.
The solution to overcrowding in correctional facilities needs a morenuanced perspective.5.
Interaction of police andthe NPA in the court system
Overcrowding is a problem in the court roll as well. According tothe Institute for Security Studies, the average case load of investigating officers in South Africa is 100 dockets (theinternational norm is 50-60 dockets) per day. It appears thatinvestigating officers are overworked, and this may extend to theprosecutors.
This results in a production line mentality with very littleinteraction between the prosecutor and the investigating officer,simply because there is insufficient time.
There are both human resource and organisational issues that needto be addressed.