- Section 12(1)(a)-(b) of the Constitution of the Republic of South Africa Act 108 of 1996 (‘the Constitution’) (guaranteeing rights ‘not to be deprived of freedom arbitrarily or without just cause’ and ‘not to be detained without trial’).
- Ibid s 35.
- N Steytler Constitutional Criminal Procedure (1998) 1 (in contrast to the ‘oppressive and authoritarian criminal justice system of the apartheid era, the Constitution, protecting the rights of individuals, including those of accused and convicted persons, is now supreme’); Ferreira v Levin NO 1996 (1) SA 984 (CC) para 51 (‘One of the main objects of the Constitution is to eradicate [the] denial or restriction of freedom, not in a casuistic way, but as a profound constitutional commitment’); S v Makwanyane 1995 (3) SA 391 (CC) para 262 per Mahomed J (‘The South African Constitution… represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular and repressive’); Key v Attorney General, Cape of Good Hope Provincial Division 1996 (4) SA 187 (CC) para 13 note 22 (‘formidable array of safeguards’ for arrested, detained and accused persons ‘protect the individual against the state’ in contrast to ‘history of executive hegemony and the pervading abuse of its power’).
- Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC) para 11 (analysing contours of ‘a right as fundamental as… personal freedom’); S v Coetzee 1997 (3) SA 527 (CC) para 14 (‘a consequence of the value system introduced by the Constitution is that the freedom of the individual may not lightly be taken away’).
- Section 36(1) of the Constitution.
- S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC) para 18 (‘crimes of violence… have reached an intolerably high level and… urgent corrective measures are warranted’); Makwanyane (note 3 above) para 117 (‘[t]he level of violent crime in our country has reached alarming proportions…. It is of fundamental importance to the future of our country that respect for the law should be restored’); S v Williams 1995 (3) SA 632 (CC) para 80 (per Langa J) (confirming state's ‘pressing and substantial’ interest in controlling escalating crime); K van Dijkhorst ‘The Criminal Justice System in Jeopardy: Is the Constitution our Bane?’ 136 Consultus (November 1998) (‘The criminal justice system… has broken down’).
- 1999 (4) SA 623 (CC).
- Section 36 of the Constitution.
- S v Manamela and Mdlalose 2000 (3) SA I (CC) para 32.
- S Woolman ‘Out of Order? Out of Balance? The Limitation Clause of the Final Constitution’ (1997) 13 SAJHR 102, 109–111 and note 14 (quoting Memorandum to Constitutional Assembly which noted that ‘care should be taken not to formulate these factors as tests’); ibid 111 (balancing requires comparison of ‘competing and often incommensurable values’).
- Ibid 107 (‘the drafters of the… limitation clause copied its “relevant” factors almost verbatim from [the] discussion of “proportionality” in S v Makwanyane’).
- Note 3 above. Although Makwanyane applied the limitations clause (s 33(1)) of the interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993), the same analysis applies in terms of the 1996 Constitution. See National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) paras 33–35 (Makwanyane limitations analysis applies to 1996 Constitution); De Lange v Smuts 1998 (3) SA 785 (CC) paras 86–87 (1996 Constitution's limitations test ‘does not in any material respect alter the approach expounded in Makwanyane’); but see ibid para 138 note 183 (per Mokgoro J) (urging ‘cautious’ approach to applying Makwanyane analysis to 1996 Constitution's limitations clause).
- Makwanyane (note 3 above) para 104.
- Ibid. In language nearly identical to s 36, the Makwanyane Court described these factors as ‘the nature of the right that is limited, and its importance to an open and democratic society…; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and… whether the desired ends could reasonably be achieved through other means less damaging to the right in question’.
- Ibid para 104 note 130, para 108 note 139 (discussing German jurisprudence requiring a proportionality ‘both between ends and means and between costs and benefits’); ibid para 105 citing Canadian cases requiring a ‘proportionality between the effects of the measures… and the objective which has been identified as of sufficient importance’ (quoting R v Oakes [1986] 19 CRR 308, 337) (emphasis added).
- Ibid para 105 (citing Canadian cases); ibid para 108 note 139 (citing German jurisprudence assessing whether a measure is ‘suitable for the achievement of its intended purpose, and ‘whether it in fact achieves that purpose, [and] is necessary therefor’).
- Woolman ‘Out of Order’ (note 10 above) 110; Woolman ‘Limitation’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1993, 3 rev 1999) 12–52 (‘a rational relationship between a legitimate objective and the means used to achieve it’ is central to notions of reasonableness and justifiability, and criticising judgment for failing to test the rationality of the means-ends relationship before proceeding to proportionality questions concerning extent of infringement); ibid 12–50 to 12–51 (courts must verify the rationality of the statute's means of pursuing legitimate state objectives as a threshold matter before proceeding with the rest of the limitations analysis).
- Makwanyane (note 3 above) para 156 (per Ackermann J).
- E Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31, 32; Makwanyane (note 3 above) para 156 (per Ackermann J) (emphasising ‘the importance, in our new constitutional state, of reason and justification when rights are sought to be curtailed’).
- Cf Woolman ‘Out of Order?’ (note 10 above) 112 (applying limitations clause factors without a clear focus on underlying principles could ‘result in analytical confusion’, leaving courts without ‘any well-articulated theory of limitation analysis’).
- De Lange (note 12 above) paras 23 and 88 (requiring ‘rational connection between the deprivation and some objectively determinable purpose,’ and conducting an ‘evaluation of proportionality’); Williams (note 6 above) paras 58–60 and 80 (‘the means employed must be reasonable and demonstrably justifiable’, which requires an assessment of proportionality); S v Bhulwana; S v Gwadiso, 1996 (1) SA 388 (CC) paras 17 and 24 (confirming ‘urgent and pressing’ crime-control objective but rejecting statute absent sufficient showing that it rationally ‘furthers such an objective’ and satisfies ‘proportionality assessment’); Coetzee (note 4 above) para 11 (‘at the very least a law… limiting the right to freedom must have a reasonable goal and the means for achieving that goal must… be reasonable’); S v Zuma 1995 (2) SA 642 (CC) para 21 (limitations analysis requires ‘rational connection’ between the ends pursued and the means used to pursue them).
- De Lange (note 12 above) para 92; Ferreira (note 3 above) para 51; Makwanyane (note 3 above) para 102.
- Makwanyane (note 3 above) para 287 (per Mahomed J); ibid paras 182–84 (per Didcott J) (rejecting state's asserted justification because statistics were ‘inconclusive’ due to ‘variable factors for which no allowance is… made’ and ‘empirical proof,’ was insufficient); ibid para 210 (per Kriegler J) (reasonableness of infringing statute must be ‘cogently established’).
- De Lange (note 12 above) paras 94–96.
- Makwanyane (note 3 above) paras 121–22 and 127; Williams (note 6 above) paras 80, 84 and 91 (statute must be ‘demonstrably justifiable,’ and cannot stand where there was ‘no clear evidence… advanced’ as to its efficacy over available alternatives).
- See Manamela (note 9 above) para 1 (‘[t]he question of the constitutionality of reverse onus provisions has come to this Court with more frequency than any other matter’).
- Mbatha (note 6 above) paras 16–17 and 20.
- Scagell v Attorney-General of the Western Cape 1997 (2) SA 368 (CC) para 9; Zuma (note 21 above) paras 36–37 (striking down reverse onus where there was no showing that absence of provision had caused ‘substantial harm to the administration of justice,’ as state had ‘successfully’ borne the onus in ‘innumerable’ instances); Mbatha (note 6 above) para 20 (where absence of reverse onus rendered prosecution more difficult but not impossible, presumption was unwarranted); S v Coetzee (note 4 above) para 15 (absent specific justification, mere fact that task of proving the relevant facts makes the state's task more difficult is insufficient to warrant shifting onus and limiting constitutional right).
- Bhulwana (note 21 above) para 23 (analysing statute providing that a person found in possession of a certain amount of dagga was presumed to be dealing in dagga ‘until the contrary is proved’ and concluding that statute posed risk of conviction where accused raised reasonable doubt as to whether he was dealing but had not proved otherwise on a balance of probabilities).
- Manamela (note 9 above) paras 34 and 37; ibid paras 42–43 (invalidating provision where ‘[t]he relation between the reverse onus and the state purpose is not proportionate’ as the provision is ‘too broadly formulated,’ to affect a ‘wide range of people’ whose difficulty discharging the onus could place them at an ‘unacceptably high’ risk of being ‘erroneously convicted’).
- S v Mello 1998 (3) SA 712 (CC) para 8 (quoting Mbatha (note 6 above) para 24).
- Manamela (note 9 above) para 50 (‘Had the reverse onus been wrought in a more focussed and nuanced way… it might have passed scrutiny. Yet as it stands, its sweep is too great. The risk of people being erroneously convicted and unjustly sent to jail is too high’).
- Mello (note 31 above) paras 8 and 10 (analysing reverse onus imposing presumption ‘until the contrary is proved’ that accused found with drugs in immediate vicinity was in possession thereof).
- Ibid para 8 (quoting Mbatha, (note 6 above) para 21).
- Coetzee (note 4 above) paras 13–14; ibid para 25 (per Didcott J) (condemning statute because debtor ‘may not manage to establish’ that he is involuntarily impecunious, ‘although it is the truth’); Zuma (note 21 above) para 37 (invalidating statutory presumption that confession was voluntary because it failed to distinguish between those who dishonestly seek to retract valid confessions and those who have ‘in fact been subject to duress’).
- Mbatha (note 6 above) paras 21–22; Scagell (note 28 above) para 14 (invalidating reverse onus provision where ‘[t]he relationship between the presumed facts and the proven facts is, at best, only tenuous’); Bhulwana (note 21 above) paras 20–24 (rejecting state's attempt to convict offenders ‘who otherwise would not be convicted’ where statutory approach was ‘arbitrary’ and was not rationally calculated to identify appropriate cases).
- Woolman Out of Order?’ (note 10 above) 111 (‘[i]f the government… is going to restrict the exercise of a fundamental right… it should… employ the means… least restrictive of the right(s) being infringed’).
- Ferreira (note 3 above) para 127 (considering constitutionality of provision requiring individuals to testify as to company's affairs despite risk of self-incrimination); Mbatha (note 6 above) para 26 (requiring state to bear onus of demonstrating unavailability of less restrictive means, and finding onus unjustified where state had not shown that less invasive means would not effectively facilitate firearms prosecutions).
- Mbatha (note 6 above) para 26; Manamela (note 9 above) para 49 (where state had not demonstrated that ‘imposition of an evidential burden’ would not ‘equally serve’ its interests, it had ‘failed to establish that no less restrictive means were available’).
- Manamela (note 9 above) para 50.
- Ferreira (note 3 above) paras 126–27.
- De Lange (note 12 above) paras 96–99.
- 1999 (4) SA 623 (CC) paras 58–80.
- Section 60(11) of the Criminal Procedure Act 51 of 1977 (‘CPA’) as amended by the Criminal Procedure Second Amendment Act 75 of 1995 and the Criminal Procedure Second Amendment Act 85 of 1997.
- Section 35(1)(f) of the Constitution. Although Dlamini considered challenges to other aspects of the CPA's bail provisions, this article focuses on the reverse onus imposed by s 60(11).
- Dlamini (note 43 above) paras 63–64 and 68.
- Ibid para 11; Du Toit et al Commentary on the Criminal Procedure Act (21st Rev 1998) 9–2, 9–5 (bail is intended to protect integrity of judicial process by ensuring that accused does not evade or interfere with prosecution or pose undue risk to society pending trial, whilst minimising interference with the accused's liberty interests as an unconvicted, presumptively innocent person).
- Dlamini (note 43 above) paras 66–69.
- Ibid.
- Ibid para 70.
- Ibid paras 73–74.
- Ibid paras 76–77.
- Manamela (note 9 above) para 1 (noting frequency with which Court has examined reverse onus statutes).
- Dlamini (note 43 above) para 78.
- F Snyckers ‘Criminal Procedure’ in Constitutional Law of South Africa (note 17 above) 27–56 (imposition of onus on accused in the bail context is a ‘lamentable inversion of the ordinarily operative presumption in favour of liberty in the sphere closest to its core’).
- See for example Zuma (note 21 above) (scrutinising constitutionality of reverse onus provision regarding admissibility of confessions in criminal cases); Coetzee v Government (note 4 above) (examining, in the context of civil proceedings to detain judgment debtors, constitutionality of reverse onus provision regarding voluntariness of debtor's inability to satisfy debts).
- See note 28 above.
- Although the Dlamini Court directly confronted a challenge to s 60(11)(b), which applies only to serious violent crimes enumerated in Schedule 6 of the CPA, and requires the accused to ‘adduce[] evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permits his or her release’, it stated that it would also find no merit in any challenge to s 60(11)(a), which applies to an array of serious non-violent crimes enumerated in Schedule 5 of the CPA, as well as to less serious crimes where the accused has previously been convicted of such a crime or has committed such a crime whilst on bail, and which also requires the accused to discharge a formal legal onus but omits the added ‘exceptional circumstances’ requirement. Dlamini (note 43 above) para 78. The Court's rejecting, albeit in dictum, any challenge to this reverse onus without first scrutinising the justification for restricting access to bail for those accused of non-violent offences stands in stark contrast to its cases requiring affirmative evidence of justification.
- Dlamini (note 43 above) para 63.
- Under international law, which the Court is bound to consider in terms of s 39(1)(b) of the Constitution, assessments of an accused's risk of flight are not to be based solely on the severity of the sentence, but rather on all relevant factors. See Steytler (note 3 above) 132 (discussing jurisprudence of European Court of Human Rights).
- Section 11A of the CPA.
- Dlamini (note 43 above) para 58.
- Cf Mbatha (note 6 above) para 24 (striking down reverse onus which police and prosecutors had ‘[i]mmense discretionary power’ to trigger, such that ‘crucial decision-making…. shift[ed]’ from judicial context ‘to the unrestrained discretion of police and prosecutor,’ raising possibility that ‘overworked police and prosecuting authorities would understandably be tempted to focus on merely getting sufficient evidence to raise the presumption’ then relying ‘on a poor showing by the accused’ instead of determining guilt).
- See S v Jonas [1999] 1 All SA 578 (SE) 580 (reviewing magistrate's holding that reverse onus is triggered ‘simply upon the State's tendering of the charge sheet,’ so accused must be detained unless he demonstrates on balance of probabilities that charges are untrue, even where state submits no evidence to support charges or to demonstrate threat to interests of justice); S v Stanfield 1997 (1) SACR 221 (refusing to apply statute's literal command to detain accused based solely on charge sheet combined with accused's failure to discharge formal onus where charge sheet did not establish prima facie case against accused and state failed to demonstrate any risk to interests of justice).
- Mello (note 31 above) para 8 (quoting Mbatha note 6 above s 24).
- See text at note 31 above.
- S v Jonas (note 65 above) 580 (criticising statute's potential ‘random incarceration’ of persons accused of serious offences ‘who, after all, must be regarded as innocent until proven guilty in a court of law).
- Dlamini (note 43 above) para 66. The state did not, for instance, present evidence of the frequency with which persons accused of Schedule 6 offences committed acts harmful to the interests of justice whilst on bail.
- The Court cited the need to ‘strengthen confidence in the criminal justice system’ in the face of ‘widespread public misunderstanding as to the purpose and effect of bail,’ and the ‘indubitably important’ purpose of ‘deterring and controlling serious crime.’ Dlamini (note 43 above) paras 62 and 67–68. However, individual rights may not be limited in deference to misinformed public opinion. Makwanyane (note 3 above) para 188 (per Didcott J) (public opinion ‘deserves no further homage if the premise underlying… it is fallacious or unfounded’); A Cockrell ‘Rainbow Jurisprudence’ (1996) 12 SAJHR 1, 22–23 (rights should not be curtailed in deference to public beliefs that are ‘faulty’ due to ‘lack of information, logical errors, or… lack of understanding’). Moreover, because bail involves unconvicted, presumptively innocent persons, it cannot be used to punish or deter. S v Acheson 1991 2 SA 805 (Nm) 822A (per Mahomed J) (‘An accused person cannot be [detained] pending his trial as a form of anticipatory punishment. The presumption is that he is innocent until his guilt has been established in Court.’)
- Although the Court noted that facts relevant to bail determinations lie within the accused's knowledge, Dlamini (note 43 above) para 78, this fact is insufficient to justify a reverse onus provision. S v Coetzee (note 4 above) paras 15 and 48 (fact that ‘matters… are peculiarly within the knowledge of the accused,’ making it ‘more difficult for the prosecution to secure a conviction’ does not justify limiting rights if state could achieve its ends by less invasive means); Coetzee (note 4 above) para 14 (fact that information was peculiarly within individual's knowledge was insufficient to justify shifting onus to the individual, risking detention in inappropriate cases).
- Section 60(4)-(9) of the CPA (enumerating factors relevant to assessing whether detention shall be in the interests of justice). Those provisions guide judicial consideration so closely, and emphasise state interests so saliently, that they prompted a challenge asserting that they usurped the judicial prerogative to interpret the ‘interests of justice’ standard. Dlamini (note 43 above) paras 39–57. That challenge is, however, beyond the scope of this article.
- Mbatha (note 6 above) para 19 (rejecting state's attempt to justify reverse onus designed to increase penalty based on possession of large quantity of dagga, where sentencing discretion permitted enhanced sentence based on large quantity).
- Cf Makwanyane (note 3 above) paras 112, 123, 135 and 145–46 (Chaskalson P) (considering whether death sentence had a ‘marginally greater deterrent effect’ compared to ‘the alternative[s] available’ based on comparison between death penalty and ‘severe punishment of life imprisonment’ not ‘between the death sentence and the murder going unpunished’); ibid para 181 (per Didcott, J) (‘The question is not whether capital punishment has a deterrent effect, but whether its deterrent effect [is] significantly greater than that of the alternative sentence available’); Williams (note 6 above) para 84 (striking down corporal punishment statute absent evidence that it deterred ‘more than other punishments’).
- Section 60(5) of the CPA (permitting court to consider degree of violence implicit in charge, disposition to commit offences, and disposition to violence).
- Dlamini (note 43 above) para 6 (the ‘Constitution itself… places a limitation on the [accused's] liberty interest…. [T]he person concerned has a right, but a circumscribed one, to be released from custody… [if] the interests of justice permit it’).
- Cf Woolman ‘Limitation’ (note 17 above) 12–23 to 12–26 (discussing specific limitations found within certain constitutional rights).
- Cf Snyckers (note 55 above) 27–21 (because notion of ‘fair trial’ embodies notions of what is fair in the light of state interests in securing convictions, fair trial rights, like other rights that contain express qualifications, should not be significantly restricted because ‘there would seem to be no real room for justifiable limitation’ of rights that are already defined so as to accommodate legitimate state interests).
- Williams (note 6 above) para 63 (per Langa J) (fundamental rights may not be infringed merely because ‘our society has not yet established mechanisms to deal with’ law enforcement concerns, and rejecting the ‘untenable’ suggestion that limitations of rights are an acceptable ‘price to be paid for this state of unreadiness’); Makwanyane (note 3 above) paras 121–22 (Chaskalson P); paras 288–90 (Mahomed J) (where criminal justice system's lack of deterrence was attributable to high probability of not being apprehended, it could not rationally be addressed by limiting fundamental rights through sentencing); M Cowling ‘A Constitutional Right to Bail?’ (1996) 1 Human Rights and Constitutional LJ of Southern Africa 39 (suggesting that bail is sometimes granted improperly not because Constitution is too permissive, but because officers who have ‘not adjusted to the new regime’ assume bail will be denied, and thus fail to investigate or present facts warranting detention).
- Zuma (note 21 above) para 3 (although reverse onus would release police and prosecutors from ‘the inconvenience of marshalling and calling their witnesses,’ convenience and expediency cannot justify infringements of important rights).
- S v Schietekat [1999] 1 All SA 131 (C) 139–40 (‘hardened criminals may abuse the privilege of bail…. The remedy is to refuse bail where that danger manifests…. [N]o court should permit itself, because the executive… and the police… cannot maintain law and order, to be turned into their instrument’); S v Letaoana (1998) 1 All SA 107 (W) 121 (despite ‘horrific cases of crimes committed by accused persons while on bail’ and of ‘accused persons… absconding and never standing trial,’ refusing bail in ‘an otherwise deserving case is no way to address these problems’).
- See Makwanyane (note 3 above) paras 313 and 316 (per Mokgoro J) (rejecting limitation which ‘instrumentalises the offender for the objectives of state policy’ and ‘objectifies him or her as a tool for crime control’); Williams (note 6 above) para 85 (an individual's rights may not be ‘sacrificed on the altar of deterrence’).
- Woolman ‘Limitation’ (note 17 above) 12–37.
- See text at notes 39–40 above.
- See text at notes 41–42 above.
- Dlamini (note 43 above) paras 70–73. Of the practices surveyed, none restricted bail based solely on the prosecution's unsubstantiated characterisation of the charge; each was targeted to address concerns intrinsic to the bail system instead of extending to an array of serious crimes, and none imposed a formal legal onus on the accused. See s 4 of the United Kingdom Bail Act, 1976 (permitting denial of bail if there are ‘substantial grounds’ for believing accused would threaten interests of justice while on bail, and requiring court to consider a range of factors in making this determination); United States v Salerno 481 US 739, 750 (1987) (upholding bail restrictions by a narrow majority because they were based on statute's ‘careful delineation’ of circumstances where release posed a threat to the community pending trial, were not on ‘a scattershot attempt to incapacitate those who are merely suspected of… serious crimes,’ and required the state to demonstrate ‘by clear and convincing evidence’ ‘an identified and articulable threat’ that could not be mitigated by bail conditions); s 515(10) of the Canadian Criminal Code (providing for detention based on showing of identifiable risk to public, as determined from numerous factors relevant to functioning of bail system); ss 8A, 9, and 9A of the Australian federal Bail Act 161 of 1978 (imposing presumption against bail, but not formal legal onus, in cases involving specific types of violent offences).
- Dlamini (note 43 above) para 69 (‘bail is not an absolute right in any jurisdiction, and… limitations on the right to bail vary considerably’).
- Coetzee (note 4 above) para 51 (per Sachs J).
- Dlamini (note 43 above) para 79.
- Zuma (note 21 above) para 4.
- Zuma (note 21 above) para 7 (quoting S v Zuma 1995 (1) BCLR 49 (N)).
- J Kentridge & D Spitz ‘Interpretation’ in Constitutional Law of South Africa (note 17 above) 11–34.
- Dlamini (note 43 above) paras 61 and 80 (‘detainees cannot put relevant factors before the court informally, nor can they rely on information produced by the prosecution; they actually have to adduce evidence’).
- See s 60(14) (restricting the bail applicant's access to the police docket).
- See s 60(11B)(c) (providing that the record of bail proceedings ‘shall form part of the record of the trial of the accused’).
- Manamela (note 9 above) para 11 (because ‘accused were unaware of what they had to establish to secure their acquittal… there was virtually no evidence on record’ regarding the issue on which they bore the onus).
- Coetzee (note 4 above) paras 8 and 14 (striking down reverse onus statute, despite argument that magistrates could assist undefended debtors who were ‘uninformed about the possibility of raising defences or the means of doing so’ to avoid imprisonment, because these debtors were nonetheless at risk of being imprisoned for failing to discharge the onus of proving they were involuntarily impecunious).
- Dlamini (note 43 above) para 61.
- Ibid para 80.
- Mbatha (note 6 above) s 23 (rights are ‘enshrined in the Constitution and do not depend on the discretion of the police or the attorney-general’); Scagell (note 28 above) para 17 (‘[i]t is not good enough to suggest… that no reasonable prosecutor would prosecute’ where reverse onus would lead to arbitrary results, where ‘nothing on the face of the statute itself require[s] a prosecutor not to’ prosecute in those instances).
- See S v Zuma (note 21 above) paras 27–28 and 37–39 (rejecting argument that reverse onus provision was not unduly invasive because in ‘some cases’ accused would be acquitted, and because of ‘improbability’ that magistrate would admit a confession based solely on onus ‘unless convinced of its voluntariness’).
- S v Mbele 1996 (1) SACR 212 (W) 235–36 (distinguishing between right to have bail considered in accordance with constitutional standard and remedy of being released where interests of justice permit); S v Tshabalala 1998 (3) All SA 411 (C) 422–23 (‘every decision allowing or refusing bail should be informed by the entrenched standard’); Dlamini (note 43 above) para 61 (noting argument that more restrictive standards ‘infringed the constitutional right to a just evaluation’ of bail application in accordance with constitutional standard). In this sense, s 60(11) does not merely limit the scope of a right, but rather renders the constitutionally defined right wholly inapplicable in certain cases.
- Snyckers (note 55 above) 27–57 note 2.
- Dlamini (note 43 above) para 79.
- De Lange (note 12 above) para 90 (temporary nature of deprivation ‘merely limits the deprivation in time,’ yet does not alter fact that ‘[f]or the period of deprivation’ accused is completely deprived of his rights).
- See MG Cowling ‘Bail Reform: An Assessment of the Criminal Procedure Second Amendment Act 75 of 1995’ (1996) 9 SA Journal of Criminal Justice 59 (‘[u]nnecessary pre-trial detention is an inherent injustice that inevitably causes great hardship… particularly… where lengthy delays between arrest and trial are a common feature of the criminal justice system as is the case in South Africa’).
- S v Bhulwana (note 21 above) para 18.
- Dlamini (note 43 above) para 68 (describing limitations analysis as requiring court to ‘counterpoise the purpose, effects and importance of the infringing legislation… against the nature and importance of the right limited’ to determine whether ‘extent of [the] limitation is justifiable’).
- Section 39(1) of the Constitution.
- Coetzee (note 4 above) para 11.
- See Dlamini (note 43 above) para 74 (s 60(11) ‘leaves the particular circumstances of each case to be considered by the presiding officer,’ which ‘affords flexibility that diminishes the… impact of the provision’); ibid paras 75–76 (emphasising ‘broad scope’ of facts that may be considered ‘exceptional circumstances’ warranting release, and that these facts need not be ‘above and beyond, and generically different from’ ordinary bail considerations).
- See S v Stanfleld (note 64 above) (accused had established grounds for release in terms of s 60(11) where there was no indication of any legitimate basis for detaining the accused pending trial); S v Jonas (note 64 above) 579–81 (because statute cannot be intended to ‘legitimise the random incarceration of persons who are suspected of having committed Schedule 6 offences, who, after all must be regarded as innocent until proved guilty’ accused had discharged his onus by providing an unchallenged alibi and unrebutted denial of the charges); S v C 1998 (2) SACR 721 (s 60(11) must be construed narrowly to permit a grant of bail where there is no indication of any threat to interests of justice to ensure that bail is not denied based on punitive concerns beyond the scope of legitimate bail considerations).
South African Journal on Human Rights
Volume 17, 2001 - Issue 3