Submission to Parliamentary Justice Portfolio Committee on Criminal Procedure Second Amendment Bill

Introduction

This submission predominantly deals with the position regarding bail in sexual offence cases. It assumes familiarity with the amendments to the law relating to bail implemented in 1995.

Background

Various cases have been reported in the popular media recently indicating serious problems with the operation of bail in the criminal justice system. Some of the more recent examples include the cases of the so-called 'Noordhoek' rapists (who had been released on bail in a pending rape matter and who subsequently assaulted and raped a second woman brutally) and the horrific circumstances around the alleged rape and murder of a seven-year old girl in Gauteng.

These well-publicized cases have (significantly) mostly dealt with sexual offences, and generally appeared to have left the public with a sense that the rights of accused persons receive preference above those of the victims of serious criminal offences, and as a result, that justice is not being done. The shortcomings exposed in these cases, viz. a general failure of police officials and/ or prosecutors to comply with their duties, the liberal interpretation of the provisions of the Criminal Procedure Act 51 of 1977 by judicial officers and structural problems regarding personnel and resources, echo the objections which women's organizations have consistently raised for some time.

Proposed Amendments

The Criminal Procedure Second Amendment Bill , which was tabled on 1 September 1997, purports to address these concerns through a variety of measures. The most significant of these are:

a)     Clause 2(a) proposes an amendment to section 50(6)(a) of the Act to the effect that bail applications may only be heard during court hours.

b)     Clause 2(b) proposes that the bail application of a person charged with an offence referred to in Schedule 5 or 6 shall be considered by a regional court, 'unless such court is not available'.

c)     Clauses 3(b) and (c) propose amendments to the provisions of section 60(4) of the Act (which indicate when a refusal of bail will be in the interests of justice).

d)     Clause 3(d) inserts grounds to be taken into consideration by a court when deciding 'whether there is a likelihood that the release of the accused will disturb the public order or undermine the public peace or security'.

e)     Clause 3(e) proposes the substitution of the present section 60(11) of the Act by a section which will provide that where an accused is charged with certain offences (committed under prescribed circumstances), the accused shall be detained in custody unless s/he satisfies the court that exceptional circumstances exist why s/he should be released. This provision ostensibly aims to curtail judicial discretion and to make it 'more difficult' for alleged offenders in serious matters to obtain bail.

f)     The present provisions of section 60(11) regarding the position of an accused who has allegedly committed a Schedule 5 or Schedule 1 offence (the latter subject to qualification) is largely retained. At present an accused finding him/herself in this category shall remain in custody unless s/he satisfies the court that the interests of justice do not require his/ her detention.

g)     Clause 3(f) inserts a provision empowering an Attorney-General to issue a written confirmation to the effect that the accused is to be charged with an offence listed in Schedule 5 or 6. This confirmation will upon its mere production be prima facie proof of the charge against the accused.

Discussion

This submission will not address the individual measures referred to supra in detail, since it is the opinion of the two organizations that the amendment of existing legislation is not the appropriate remedy in the perceived crisis regarding bail. Instead, we will attempt to show why this legislation, in our opinion, will not be successful in addressing existing problems.

One of the most contentious provisions (from both a feminist and a human rights perspective) is the introduction of a 'third tier' or super-category of offences, with the concomitant test of exceptional circumstances (to be shown by the accused). The problematic phrase here is 'exceptional circumstances': since there are no indications of what such circumstances would entail, the Bill, far from curtailing the discretion of judicial officers, actually extends it. We submit that 'exceptional circumstances', without any qualifying indicia, is a subjective concept allowing for considerable leeway in interpretation.

In our opinion, the lack of qualification leads to two possibilities in interpretation, according to the individual understanding and perspective of the judicial officer. Firstly, the phrase may be interpreted broadly (to incorporate a wide range of circumstances as 'exceptional') or it may be interpreted narrowly (thus effectively excluding the possibility of bail in the vast majority of cases involving these offences).

Our experience has shown that due to the gendered nature of the legal system generally (and specifically the criminal justice system), women's interests are seldom seen as the supreme concern. The legal system as such, and the processes of interpretation underlying its operation, are socially constructed, and the construction traditionally placed on, for example, 'credibility', 'reasonably possibly true', 'sufficiency of evidence' and 'interests of justice' has notoriously failed to take the position of women into consideration in any significant manner. There is little reason to believe that the phrase 'exceptional circumstances' will not be interpreted in its broad sense (thus in a sense making it 'easier' for accused persons to obtain bail).

On the other hand, if the phrase were to be interpreted narrowly, one immediately runs into constitutional difficulties. Although this submission will not explore this aspect comprehensively, we believe that the 'exceptional circumstances' test will not withstand scrutiny in terms of section 36 of the Constitution. It is not only arguable whether or not the limitation (the 'third tier' test) will in fact meet its purpose (i.e. addressing the existing lacunae in the bail system), but there are also clearly less restrictive means available to achieve this purpose.

Alternative Recommendations

Our experience has shown that the problems women are faced with in terms of bail in sexual offence cases are overwhelmingly related to the inadequate and ill-informed implementation of present legislation which on face value provides adequate means to curtail the right to be released on bail where appropriate - in a manner which is apparently admissible in terms of the limitations test. We believe that energy should rather be directed at informing and training judicial officers, strengthening resources and providing guidance to prosecutors as to the nature of their duties in bail applications. The role of the South African Police Services should also receive urgent attention, especially in relation to pre-hearing investigation, cooperation with the prosecution and monitoring of bail conditions.

Inexpensive measures which could be introduced immediately would include legislative provisions regarding the duties of prosecutors in bail applications relating to sexual offences, for example, to consult with all survivors without exception, to keep survivors informed at all stages of the proceedings, to make use of expert witnesses and to request the imposition of appropriate bail conditions without exception. Another measure which may be put into place immediately is the formation of teams of specialist bail prosecutors, especially in urban areas.

Medium-term measures should include the extensive training of prosecutors and judicial officers, as well as performance measurement of all state role players. On the long term, programmes should be developed to ensure that newly appointed officials are trained immediately at the point of entry into the system.

Conclusion

In conclusion, although one has to commend this effort at intervention, our concern is that the proposed amendments will not, if compared to the 1995 amendments, do anything 'new'. There are no measures contained in the Bill which will ensure improved implementation of either the Bill or existing provisions.

A careful analysis of the Bill will show that these provisions, if they had been in place at the time, would not have addressed any of the concerns which led to the sense of public outrage in the cases referred to supra (and the countless number of similar cases we regularly encounter). In our opinion, the populist appeal of this Bill will deflect attention from the fact that it fails to meet this government's real responsibility, in terms of the Constitution and international human rights law, to provide women with effective protection against violence. This Bill will have little effect but to raise expectations and leave women with the perception that their concerns are being addressed - while in practice, this is regrettably not the case.

 

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