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THE BURDEN OF PROOF IN SOUTH AFRICAN BAIL LAW

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Revised from my Post Graduate Diploma in Law Dissertation, UCT (1998), Supervisor: Prof Dirk Van Zyl Smit (Dean) [Unless otherwise indicated, all statutory citations relate to the Criminal Procedure Act 51 of 1977] INTRODUCTION In respect of more serious offences, the legislature placed the onus in bail proceedings squarely on the arrested (s60(11). On the other hand, the implications of the approach adopted in the case law is that, regarding less serious offences, that one should not have regard to an onus and that the proceedings  are inquisitorial with no onus on either the state or the arrested. In other words, under no circumstances is the onus on the State (whether the offences with which the arrested would be charged relate to either serious or less serious offences). This is ostensibly an anomaly in a Constitutional Democracy sporting a Bill of Rights granting the right to bail. But their again, this right is accorded the arrested only if the interests of justic...
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THE CONSTITUITONAL POSITION OF THE SUSPECT

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Satchwell J unleashed the debate in the discussion at hand in  S v Sebejan and Others  1997 (1) SACR 626 (W). The accused was under cross-examination by counsel for another accused who put it to the accused that she had made a statement to the Sergeant. The accused confirmed this. When the cross-examining counsel put this statement to  her, her own counsel contested the admissibility of the statement, arguing that, at the time of making the statement she was a suspect and that she had not, before making her statement, been warned of her right to legal representation. Counsel submitted that this failure rendered the statement constitutionally objectionable and that it should be disallowed as evidence (at 627 j -628 c ). Judge Satchwell summarised the position with regard to those categories of persons that enjoy constitutional protection as follows: s 25 of the [Interim] Constitution secures certain rights for 'detained, arrested and accused persons'. Acco...
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BAIL MANUAL FOR SOUTH AFRICAN PRCTITIONERS

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(Revision in Progress) [Unless otherwise stated, all statutory citations refer to the Criminal Procedure Act (51 of 1977)] GROUNDS FOR REFUSING BAIL 1)      There are 5 grounds on which bail could be refused  [s60(4)(a)-(e)] ; 2)      For the factors which  could be taken into account in for refusal, consult  s60(5)-(8A) .   In other words: When bail is opposed in terms of — s60(4)(a) — the factors laid down in  s60(5 ) may be relied on. s60(4)(b) — the factors laid down in  s60(6)  may be relied on s60(4)(c) — the factors laid down in  s60(7)  may be relied on s60(4)(d) — the factors laid down in  s60(8)  may be relied on s60(4)(e) — the factors laid down in  s60(8A)  may be relied on 3)      There isn’t a fixed number ( numerus clausus)  of grounds for refusing bai; other grounds not specified may be considered. ...
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