A proposal to amend the law to include a provision allowing accused people to be released through property bail could lead to an administrative nightmare, says the deputy chair of the Legal Practice Council.
Llewelyn Curlewis was commenting on one of the proposals made by the SA Law Reform Commission for the amendment of the Criminal Procedure Act.
He said recommendations aimed at reducing overcrowding in prisons were vital, but was he concerned the justice system would not be able to administer the property bail.
The commission, chaired by retired justice Chris Jafta, is an independent body that researches legal lacunas and makes recommendations to the government to develop the law.
In a recent paper, the commission recommended property bail should be incorporated into the bail regime as “such a measure would provide an additional option, to accused people with limited or no cash available to secure bail”.
Property bail would allow the accused to give the state their assets to secure bail.
The SA law does make a provision for the court to release an accused if they cannot afford bail. This provision is not regularly implemented by courts and leads to thousands of people staying in prison because they cannot afford monetary bail.
The Judicial Inspectorate for Correctional Centres 2023/2024 detailed that 2,400 detainees could not afford to pay a bail amount of less than R1,000. In 2021/22, the figure was 2,724.
This results in the state spending millions accommodating people who should have been released on bail.
Curlewis, who is deputy chair of the Legal Practice Council, said: “My criticism of the proposal is that from a logistics point of view, it is going to be extremely difficult to enforce.”
He said the property bail provision would need the resource-strained state to have personnel and technology to ensure implementation of the bail runs smoothly.
Storage would also be needed to keep movable property given to the court to secure bail.
“The state will need facilities for property [movable] to secure it for the court. I do not think we have the capacity or the manpower to do that at this stage at least,” he said.
“In what manner are we going to expedite that security? Are we going to effect enforcement at the deeds office to say this property is set up as security for bail?
“There must be some kind of link between the property and endorsement of the property to ensure that there is some kind of attachment of some sort.”
Accused who would want to put their houses up for bail where a bank is involved through bond payment agreements would be a challenge, Curlewis said.
“If I am a bondholder [bank] on a property and the owner of the property wants to put up his house as security for bail then I will have a problem with that because the government will stand second or third in line [for ownership]. It will put pressure on the creditors of these people and they will not give consent.”
The commission stipulates for a property that is co-owned the accused needs to get consent before offering it as bail security.
“Provided that the property is immovable property, the accused or surety must provide the title deed of the property to the court which must retain a copy thereof, or if it is not available, such other evidence the court may consider sufficient as proof of the existence of such property; recent appraisal of such property by an estate agent; latest copy of municipal rates and taxes and a recent copy of the mortgage account,” the report read.
Curlewis the property bail could work when people offer as security houses for which they do not pay mortgages.
But he said bail property would not reduce overcrowding at prisons.
“People who cannot afford bail of less than R1,000, usually do have immovable property or movable property that would be enough to sell to put up a R1,000 bail. Are we going to make a huge difference in terms of the numbers? I do not think so.”
On why courts sometimes do not release people who can afford bail on a warning, he said this usually sparks an outcry from the public.
“There is a risk that those people can get out and run away and never be found because they have nothing to lose. It is not an easy balancing act.”
The commission also recommended that crime victims should have a say in bail applications.
“Currently, the investigating officer represents the complainant in court. By merely changing this to the victims themselves to report to court will not make a huge difference. Nine out of ten victims will say the person must never get bail. That will not alleviate the number of inmates in custody awaiting trial and cannot afford bail,” Curlewis said.
The commission’s recommendations have not yet been finalised. The paper still has to go through public commentary before it is considered to be tabled in parliament as a bill.
The public can submit comments on the paper via email to CPAreform@justice.gov.za and fmdumbe@justice.gov.za until March 31.
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