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Let’s talk Bail
1/16
In Zimbabwe there’s a presumption of innocence for everyone arrested until the court finds them guilty. This exists under s70 (1) (a) where the section stipulates the Rights of an Accused. It means you’re regarded as innocent until the court rules otherwise.
1/16
In Zimbabwe there’s a presumption of innocence for everyone arrested until the court finds them guilty. This exists under s70 (1) (a) where the section stipulates the Rights of an Accused. It means you’re regarded as innocent until the court rules otherwise.
2
When a person is arrested, the police can only hold that person for a maximum of 48 hours, before the lapse of which the accused must be brought before a magistrate. Whilst the trial is being ongoing, the accused can be detained in prison cells (remand).
When a person is arrested, the police can only hold that person for a maximum of 48 hours, before the lapse of which the accused must be brought before a magistrate. Whilst the trial is being ongoing, the accused can be detained in prison cells (remand).
3/16
If the accused doesn’t want to remain in prison until the finalisation of the trial, they may apply to the court to be released on bail (with or without conditions). Bail is a sum of money paid to the court or to the police.
If the accused doesn’t want to remain in prison until the finalisation of the trial, they may apply to the court to be released on bail (with or without conditions). Bail is a sum of money paid to the court or to the police.
4/16
Conditions for granting bail vary & include whether or not the person is a flight risk. This simply means has it been demonstrated that he/she won’t abscond court proceedings and/or run away. The refusal or granting of bail is a vitally important part of the criminal process
Conditions for granting bail vary & include whether or not the person is a flight risk. This simply means has it been demonstrated that he/she won’t abscond court proceedings and/or run away. The refusal or granting of bail is a vitally important part of the criminal process
5/16
As Hungwe J said in S v Chiyangwa 2005 (1) ZLR 163 (H) at 168G-169A:
“Initial remand is an important step in a citizen’s loss of liberty. After arrest without warrant, it’s the 1st time that his case is presented to a neutral body for arbitration of the issue whether or not-
As Hungwe J said in S v Chiyangwa 2005 (1) ZLR 163 (H) at 168G-169A:
“Initial remand is an important step in a citizen’s loss of liberty. After arrest without warrant, it’s the 1st time that his case is presented to a neutral body for arbitration of the issue whether or not-
6/16
-on the basis of mere suspicion, the citizen must lose his freedom. If he loses his freedom at that stage, before his guilt is proved, he may face total ruin. He may lose his job, or other means of his livelihood
-on the basis of mere suspicion, the citizen must lose his freedom. If he loses his freedom at that stage, before his guilt is proved, he may face total ruin. He may lose his job, or other means of his livelihood
7/16
He could lose his home too if he is a lodger or a mortgagee as he falls into arrears. This could drive his family into destitution and he is forced to rely on State support for livelihood whilst in custody.
He could lose his home too if he is a lodger or a mortgagee as he falls into arrears. This could drive his family into destitution and he is forced to rely on State support for livelihood whilst in custody.
8/16
The consequences are just too ghastly to contemplate for both the rich and the poor. Magistrates are therefore to take the greatest care when approaching the question whether to deny or grant bail.”
The consequences are just too ghastly to contemplate for both the rich and the poor. Magistrates are therefore to take the greatest care when approaching the question whether to deny or grant bail.”
9/16
Bail proceedings, follow the inquisitorial rather than the adversarial model of criminal procedure. Both sides can be required to adduce evidence. Section 50(1)(d) of the Constitution states that a person who has been arrested:-
Bail proceedings, follow the inquisitorial rather than the adversarial model of criminal procedure. Both sides can be required to adduce evidence. Section 50(1)(d) of the Constitution states that a person who has been arrested:-
10/16
-“must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.”
According to section 117(1) of the Criminal Procedure and Evidence Act,-
-“must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.”
According to section 117(1) of the Criminal Procedure and Evidence Act,-
11/16
-every accused person has a right to bail, subject to the interests of justice:
“A person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed,-
-every accused person has a right to bail, subject to the interests of justice:
“A person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed,-
12/16
-unless the court finds that it is in the interests of justice that he or she should be detained in custody.” The constitutional provision protects liberty more stringently: an accused person must be released unless there are “compelling reasons”-
-unless the court finds that it is in the interests of justice that he or she should be detained in custody.” The constitutional provision protects liberty more stringently: an accused person must be released unless there are “compelling reasons”-
13/16
-for keeping him in detention; the Criminal Procedure and Evidence Act on the other hand says that he may be detained if it is “in the interests of justice” to do so.
-for keeping him in detention; the Criminal Procedure and Evidence Act on the other hand says that he may be detained if it is “in the interests of justice” to do so.
14/16
There are three reasons which normally justify continued detention:
* that the suspect is likely to abscond
* that the suspect is likely to interfere with the evidence, e.g. by intimidating witnesses
* that the suspect is likely to commit further crimes if released.
There are three reasons which normally justify continued detention:
* that the suspect is likely to abscond
* that the suspect is likely to interfere with the evidence, e.g. by intimidating witnesses
* that the suspect is likely to commit further crimes if released.
15/16
Whether those reasons, individually or in combination, will be compelling depends on the facts and circumstances of each case. The more likely the suspect is to do any of these things, the more compelling the reason for keeping him in custody.
Whether those reasons, individually or in combination, will be compelling depends on the facts and circumstances of each case. The more likely the suspect is to do any of these things, the more compelling the reason for keeping him in custody.
16/16
s117 of the Act seems to be based the South African Criminal Procedure Act, 1977, which in turn is based on s35(1)(f) of SA’s constitution. s35(1)(f) states that everyone who is arrested has the right to be released from detention “if the interests of justice permit”.
s117 of the Act seems to be based the South African Criminal Procedure Act, 1977, which in turn is based on s35(1)(f) of SA’s constitution. s35(1)(f) states that everyone who is arrested has the right to be released from detention “if the interests of justice permit”.
Afterthought: Bail can actually be granted by the Police in some instances too, but that’s for another day. #LegalDisruptor #TheEnd
