OFFICE OF THE PRESIDENT
No. 1474.
21 September 1995
NO. 75 OF 1995: CRIMINAL PROCEDURE SECOND AMENDMENT ACT, 1995.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
GENERAL EXPLANATORY NOTE:
** ** Words between asterisks indicate omissions from
existing enactments.
<< >> Words between pointed brackets indicate insertions in
existing enactments.
ACT
To amend the Criminal Procedure Act, 1977, so as to further regulate the
detention of arrested persons; to make provision for accused persons to be
entitled to be released on bail in certain circumstances to give a court a
discretion to postpone bail proceedings in certain circumstances; to empower a
court to, in respect of certain serious offences, order the accused to satisfy
the court that the interests of justice do not require his or her detention in
custody; to empower the attorney-general to appeal against the decision of a
court to release an accused on bail and the imposition of bail conditions; to
set out the factors which should be taken into account in considering bail; to
further regulate bail proceedings; to revoke the power of an attorney-general
to prevent the granting of bail in certain cases; to render the non-appearance
of persons who are on bail in certain cases and the non-compliance of bail
conditions punishable; to further regulate the cancellation of bail; to empower
a superior court to consider the granting of bail after the refusal of such an
application in a magistrate's court where an accused is standing trial in the
superior court; and to make the bail-related provisions in the Criminal
Procedure Act, 1977, as amended, applicable in the whole of the national
territory; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as
follows:-
Amendment of section 50 of Act 51 of 1977, as amended by section 1 of Act 56 of
1979 and section 37 of Act 122 of 1991
1. Section 50 of the Criminal Procedure Act, 1977 (hereinafter referred to
as the principal Act), is hereby amended-
(a) by the substitution for subsection (3) of the following subsection:
"(3) <<Subject to the provisions of subsections (6) and
(7)>>, nothing in this section shall be construed as modifying
the provisions of this Act or any other law whereby a person
under detention may be released on bail or on warning or on a
written notice to appear in court."; and
(b) by the addition of the following subsections:
<<"(6) When a person is arrested for the alleged commission
of an offence, he or she shall be informed as soon as possible
of his or her right to institute bail proceedings and, if he
or she is not granted bail under section 59, he or she shall
at his or her request be brought before a lower court as soon
as it is reasonably possible for consideration of his or her
bail application: Provided that the court may postpone any
bail proceedings to any date, for a period not exceeding seven
days at a time, on the terms which the court may deem proper
and which are not inconsistent with any provision of this Act,
if
(a) the court is of the opinion that it has insufficient information or
evidence at its disposal to reach a decision on the bail application; or
(b) it appears to the court that it is necessary to provide the State with
a reasonable opportunity to
(i) procure material evidence that may be lost if bail is granted;
(ii) perform the functions referred to in section 37; or
(c) it appears to the court that it is necessary in the interests of
justice to do so.
(7) If a person is arrested on suspicion of having committed an offence, but a
charge has not been brought against him or her because further investigation is
needed to determine whether a charge may be brought against him or her, the
investigation in question shall be completed as soon as it is reasonably
possible and the person in question shall as soon as it is reasonably possible
thereafter, and in any event not later than the day after his or her arrest
contemplated in subsections (1) and (2), be brought before an ordinary court of
law to be charged and enabled to institute bail proceedings in accordance with
subsection (6) or be informed of the reason for his or her further detention,
failing which he or she shall be released.">>.
Amendment of section 59 of Act 51 of 1977, as amended by section 3 of Act 26 of
1987 and section I of Act 126 of 1992
2. Section 59 of the principal Act is hereby amended by the substitution for
paragraph (a) of subsection (1) of the following paragraph:
"(a) An accused who is in custody in respect of any offence, other than
an offence referred to in Part 11 or Part III of Schedule 2 may, before
his <<or her>> first appearance in a lower court, be released on bail in
respect of such offence by any police official of or above the rank of
non-commissioned officer, <<in consultation with the police official
charged with the investigation,>> if the accused deposits at <<the>> **a**
police station the sum of money determined by such police official.".
Substitution of section 60 of Act 51 of 1977, as amended by section 2 of Act 56
of1979 and section 2 of Act 64 of 1982
3. The following section is hereby substituted for section 60 of the
principal Act:
"Bail application of accused in court
<<60. (1)(a) An accused who is in custody in respect of an offence
shall, subject to the provisions of section 50(6) and (7), be entitled
to be released on bail at any stage preceding his or her conviction in
respect of such offence, unless the court finds that it is in the
interests of justice that he or she be detained in custody.
(b) If a court refers an accused to another court for trial or sentencing,
the court referring the accused retains jurisdiction relating to the
powers, functions and duties in respect of bail in terms of this Act until
the accused appears in such other court for the first time.
(c) If the question of the possible release of the accused on bail is not
raised by the accused or the prosecutor, the court shall ascertain from the
accused whether he or she wishes that question to be considered by the
court.
(2) In bail proceedings the court may
(a) postpone any such proceedings as contemplated in section 50(6) or (7);
(b) in respect of matters that are not in dispute between the accused and
the prosecutor, acquire in an informal manner the information that is
needed for its decision or order regarding bail;
(c) in respect of matters that are in dispute between the accused and the
prosecutor, require of the prosecutor or the accused, as the case may be,
that evidence be adduced.
(3) If the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal or that it lacks certain
important information to reach a decision on the bail application, the
presiding officer shall order that such information or evidence be placed
before the court.
(4) The refusal to grant bail and the detention of an accused in custody
shall be in the interests of justice where one or more of the following grounds
are established:
(a) Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public or any particular
person or the public interest, or will commit a Schedule I offence; or
(b)where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial; or
(c)where there is the likelihood that the accused, if he or she were
released on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardies the objectives or the proper
functioning of the criminal justice system, including the bail system.
(5) In considering whether the ground in subsection (4)(a) has been
established, the court may, where applicable, take into account the following
factors, namely(a) the degree of violence towards others implicit in the charge
against the accused;
(b) any threat of violence which the accused may have made to any person;
(c) any resentment the accused is alleged to harbour against any person;
(d) any disposition to violence on the part of the accused, as is evident
from his or her past conduct;
(e) any disposition of the accused to commit offences referred to in
Schedule 1, as is evident from his or her past conduct;
(f) the prevalence of a particular type of offence;
(g) any evidence that the accused previously committed an offence referred
to in Schedule I while released on bail; or
(h) any other factor which in the opinion of the court should be taken into
account.
(6) In considering whether the ground in subsection (4)(b) has been
established, the court may, where applicable, take into account the following
factors, namely
(a) the emotional, family, community or occupational ties of the accused to
the place at which he or she is to be tried;
(b) the assets held by the accused and where such assets are situated;
(c) the means, and travel documents held by the accused, which may enable
him or her to leave the country;
(d) the extent, if any, to which the accused can afford to forfeit the
amount of bail which may be set;
(e) the question whether the extradition of the accused could readily be
effected should he or she flee across the borders of the Republic in an
attempt to evade his or her trial;>>
(f) the nature and the gravity of the charge on which the accused is to be
tried;
(g) the strength of the case against the accused and the incentive that he
or she may in consequence have to attempt to evade his or her trial;
(h) the nature and gravity of the punishment which is likely to be imposed
should the accused be convicted of the charges against him or her;
(i) the binding effect and enforceability of bail conditions which may be
imposed and the ease with which such conditions could be breached;
or
(j) any other factor which in the opinion of the court should be taken into
account.
(7) In considering whether the ground in subsection (4)(c) has been
established, the court may, where applicable, take into account the following
factors, namely(a) (a) the fact that the accused is familiar with the identity
of witnesses and with the evidence which they may bring against him or her;
(b) whether the witnesses have already made statements and agreed to testify;
(c) whether the investigation against the accused has already been completed;
(d) the relationship of the accused with the various witnesses and the
extent to which they could be influenced or intimidated;
(e) how effective and enforceable bail conditions prohibiting communication
between the accused and witnesses are likely to be;
(f) whether the accused has access to evidentially material which is to be
presented at his or her trial;
(g) the ease with which evidentially material could be concealed or
destroyed; or
(h) any other factor which in the opinion of the court should be taken into
account.
(8) In considering whether the ground in subsection (4)(d) has been
established, the court may, where applicable, take into account the following
factors, namely
(a) the fact that the accused, knowing it to be false, supplied false
information at the time of his or her arrest or during the bail
proceedings;
(b) whether the accused is in custody on another charge or whether the
accused is on parole;
(c) any previous failure on the part of the accused to comply with bail
conditions or any indication that he or she will not comply with any bail
conditions; or
(d) any other factor which in the opinion of the court should be taken into
account.
(9) In considering the question in subsection (4) the court shall decide the
matter by weighing the interests of justice against the right of the accused to
his or her personal freedom and in particular the prejudice he or she is likely
to suffer if he or she were to be detained in custody, taking into account,
where applicable, the following factors, namely
(a) the period for which the accused has already been in custody since his
or her arrest;
(b) the probable period of detention until the disposal or conclusion of the
trial if the accused is not released on bail;
(c) the reason for any delay in the disposal or conclusion of the trial and
any fault on the part of the accused with regard to such delay;
(d) any financial loss which the accused may suffer owing to his or her
detention;
(e) any impediment to the preparation of the accused's defence or any delay
in obtaining legal representation which may be brought about by the
detention of the accused; the state of health of the accused; or
(f) any other factor which in the opinion of the court should be taken into
account.
(10) Notwithstanding the fact that the prosecution does not oppose the
granting of bail, the court has the duty, contemplated in subsection (9), to
weigh up the personal interests of the accused against the interests of
justice.
(11) Notwithstanding any provision of this Act, where an accused is charged
with an offence referred to
(a) in Schedule 5;
(b) in Schedule 1, which was allegedly committed whilst he or she was
released on bail in respect of a Schedule I offence, the court shall order
that the accused be detained in custody until he or she is dealt with in
accordance with the law, unless the accused, having been given a reasonable
opportunity to do so, satisfies the court that the interests of justice do
not require his or her detention in custody.
(12) The court may make the release of an accused on bail subject to
conditions which, in the court's opinion, are in the interests of justice.
(13) The court releasing an accused on bail in terms of this section, may
order that the accused
(a) deposit with the clerk of the court or the registrar of the court, as
the case may be, or with a correctional official at the prison where the
accused is in custody or with a police official at the place where the
accused is in custody, the sum of money determined by the court in
question; or
(b) shall furnish a guarantee, with or without sureties, that he or she
will pay and forfeit to the State the amount that has been set as bail, or
that has been increased or reduced in terms of section 63(1), in
circumstances in which the amount would, had it been deposited, have been
forfeited to the State.>>".
Repeal of section 61 of Act 51 of 1977
4. Section 61 of the principal Act is hereby repealed.
Amendment of section 63 of Act 51 of 1977
5. Section 63 of the principal Act is hereby amended by the substitution for
subsection
(1) of the following subsection:
"(1) Any court before which a charge is pending in respect of which
bail has been granted may, upon the application of the prosecutor or the
accused, increase or reduce the amount of bail determined under section 59
or 60 or amend or supplement any condition imposed under section <<60 or>>
62, whether imposed by that court or any other court, and may, where the
application is made by the prosecutor and the accused is not present when
the application is made, issue a warrant for the arrest of the accused
and, when the accused is present in court, determine the application.".
Substitution of section 64 of Act 51 of 1977
6. The following section is hereby substituted for section 64 of the
principal Act:
"Proceedings with regard to bail and conditions to be recorded in
full
64. The court which considers [an application for] bail under section 60
or which imposes any further condition under section 62 or which, under
section 63, amends the amount of bail or amends or supplements any
condition <<or refuses to do so>>, shall record the relevant proceedings in
full, including the conditions imposed and any amendment or supplementation
thereof, or shall cause such proceedings to be recorded in full, and where
such court is a magistrate's court or a regional court, any document
purporting to be an extract from the record of proceedings of that court
and purporting to be certified as correct by the clerk of the court, and
which sets out the conditions of bail and any amendment or supplementation
thereof, shall, on its mere production in any court in which the relevant
charge is pending, be prima facie proof of such conditions or any amendment
or supplementation thereof.".
Insertion of section 65A in Act 51 of 1977
7. The following section is hereby inserted in the principal Act:
"Appeal by attorney-general against decision of court to release
accused on bail
<<65A. (1)(a) The attorney-general may appeal to the superior court having
jurisdiction, against the decision of a lower court to release an accused
on bail or against the imposition of a condition of bail as contemplated in
section 65(1)(a).
(b) The provisions of section 31 OA in respect of an
application or appeal referred to in that section by an
attorney-general, and the provisions of section 65(1)(b) and (c)
and (2), (3) and (4) in respect of an appeal referred to in that
section by an accused, shall apply mutatis mutandis with reference
to a case in which the attorney-general appeals in terms of
paragraph (a) of this subsection.
(2)(a) The attorney-general may appeal to the Appellate
Division against a decision of a superior court to release an
accused on bail.
(b) The provisions of section 316 in respect of an application
or appeal referred to in that section by an accused, shall apply
mutatis mutandis with reference to a case in which the
attorney-general appeals in terms of paragraph (a) of this
subsection.
(c) Upon an appeal in terms of paragraph (a) or an application
referred to in paragraph (b) brought by an attorney-general, the
court may order that the State pay the accused concerned the whole
or any part of the costs to which the accused may have been put in
opposing the appeal or application, taxed according to the scale
in civil cases of that court.
(3) If the appeal of the attorney-general in terms of
subsection (1)(a) or (2)(a) is successful, the court hearing the
appeal shall issue a warrant for the arrest of the accused.">>.
Amendment of section 66 of Act 51 of 1977
8. Section 66 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection:
"(1) If an accused is released on bail subject to any condition imposed
under section <<60 or>> 62, including any amendment or supplementation
under section 63 of a condition of bail, and the prosecutor applies to the
court before which the charge with regard to which the accused has been
released on bail is pending, to lead evidence to prove that the accused
has failed to comply with such condition, the court shall, if the accused
is present and denies that he <<or she>> failed to comply with such
condition or that his <<or her>> failure to comply with such condition was
due to fault on his <<or her>> part, proceed to hear such evidence as the
prosecutor and the accused may place before it.".
Insertion of section 67A in Act 51 of 1977
9. The following section is hereby inserted in the principal Act after
section 67:
"Criminal liability of a person who is on bail on the ground of
failure to appear or to comply with a condition of bail
<<67A. Any person who has been released on bail and who fails without good
cause to appear on the date and at the place determined for his or her
appearance, or to remain in attendance until the proceedings in which he or
she must appear have been disposed of, or who fails without good cause to
comply with a condition of bail imposed by the court in terms of section 60
or 62, including an amendment or supplementation thereof in terms of
section 63, shall be guilty of an offence and shall on conviction be liable
to a fine or to imprisonment not exceeding one year.">>.
Substitution of section 68 of Act 51 of 1977
10. The following section is hereby substituted for section 68 of the
principal Act:
"Cancellation of bail
68. (1) Any court before which a charge is pending in respect of which the
accused has been released on bail may, upon information on oath that the
accused is about to evade justice or is about to abscond in order to evade
justice, <<or that the accused interferes or threatens or attempts to
interfere with witnesses, or that the accused defeats the ends of justice
or that he or she poses a threat to the safety of the public or of a
particular person, or that it is in the public interest to do so,>> issue a
warrant for the arrest of the accused and make such order as it may seem
proper, including an order that the bail be cancelled and that the accused
be committed to prison until the conclusion of the relevant criminal
proceedings.
(2) Any magistrate may, in circumstances in which it is not practicable to
obtain a warrant of arrest under subsection (1), upon the application of
any peace officer and upon a written statement on oath by such officer that
he <<or she>> has reason to believe that an accused who has been released
on bail is about to evade justice or is about to abscond in order to evade
justice, <<or that the accused interferes or threatens or attempts to
interfere with witnesses or that the accused defeats the ends of justice,
or that he or she poses a threat to the safety of the public or of a
particular person, or that it is in the public interest to do so>>, issue a
warrant for the arrest of the accused, and may, if satisfied that the ends
of justice may be defeated if the accused is not placed in custody, cancel
the bail and commit the accused to prison, which committal shall remain of
force until the conclusion of the relevant criminal proceedings unless the
court before which the proceedings are pending sooner reinstates the
bail.".
Substitution of section 70 of Act 57 of 1979
11. The following section is hereby substituted for section 70 of the
principal Act:
"Remission of bail money
70. The Minister or any officer acting under his <<or her>> authority <<or
the court concerned>> may **,in his discretion,** remit the whole or any
part of any bail money forfeited under section 66 or 67.
Amendment of section 307 of Act 51 of 1977, as amended by section 17 of Act 56
of1979 and section 8 of Act 64 of 1982
12. Section 307 of the principal Act is hereby amended-
(a) by the substitution for paragraph (b) of subsection (2) of the
following paragraph:
"(b) if such person was not so released on bail **and the attorney-general
has not in terms of section 61 objected to the granting of bail to such
person**, release him <<or her>> on bail on condition that he <<or she>>
deposits with the clerk of the court or with a member of the prisons
service at the prison where such person is in custody or with any police
official at the place where such convicted person is in custody, the sum of
money determined by the court in question; or";
"(b) by the insertion after subsection (3) of the following subsection:
<<"(3A) (a) If the order contemplated in subsection (3)(b) is not served on
the convicted person within 14 days of the issuing thereof because he or
she cannot be found at the address given by him or her at the time of the
granting of bail to him or her, the bail shall be provisionally cancelled
and the bail money provisionally forfeited and a warrant for his or her
arrest shall be issued.
(b) The provisions of section 67(2) in respect of the confirmation or the
lapsing of the provisional cancellation of bail or the forfeiture of bail
money, and making final the provisional forfeiture of bail money, the
provisions of section 67(3) in respect of the hearing of evidence, and the
provisions of section 70 in respect of the remission of forfeited bail
money, shall apply mutatis mutandis in respect of bail pending review.>>",
and
(c) by the substitution for subsection (6) of the following subsection:
"(6) The provisions of sections 63, 64, 65, 66 **,67** and 68 shall mutatis
mutandis apply with reference to **the granting of** bail pending review.".
Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105
of 1982, section 8 of Act 107 of 1990 and section 51 of Act 129 of 1993
13. Section 309 of the principal Act is hereby amended by the addition after
subsection (4) of the following subsection:
<<"(5) When a provincial or local division of the Supreme Court gives
a decision on appeal against a decision of the magistrate's court and the
former decision is appealed against, such division of the Supreme Court has
the powers in respect of the granting of bail which a magistrate's court has
in terms of section 307.>>".
Addition of Schedule to Act 51 of 1977
14. The following Schedule is hereby added to the principal Act:
SCHEDULE 5
(Section 60(11))
<<Treason.
Murder, involving the use of a dangerous weapon or firearm as defined in
the Dangerous Weapons Act, 1968 (Act No. 71 of 1968).
Rape.
Robbery with aggravating circumstances and robbery of a motor vehicle.
Any offence referred to in sections 13(f) and 14(b) of the Drugs and Drug
Trafficking Act, 1992 (Act No. 140 of 1992).
Any statutory offence relating to the trafficking of, dealing in or
smuggling of firearms, explosives or armament, or the possession of an
automatic or semi-automatic firearm, explosives or armament.
Any offence relating to exchange control, corruption, fraud, forgery,
uttering or theft involving amounts in excess of R500 000,00>>.
Transitional provisions
15. (1) Any provision contained in any other law that is in respect of
bail inconsistent with the provisions of sections 37, 50, 58 up to and
including 71, 72, 141, 144, 170, 304, 307, 308, 308A and 321 of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977), as amended by this Act,
shall be deemed to be amended to the extent of the inconsistency thereof.
(2) Notwithstanding the provisions of subsection (1), bail proceedings
which have commenced before the date of commencement of this Act in any
superior court, regional court or magistrate's court shall, if such
proceedings have at that date not been concluded, be continued and
concluded as if subsection (1) has not come into operation.
Short title
16. This Act shall be called the Criminal Procedure Second Amendment Act,
1995.