S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98; CCT22/98 ; CCT2/99 ; CCT4/99) [1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999)

JAN JOHANNES SCHIETEKAT Respondent

Heard on : (1) 18 February 1999

(2)-(4) 10 March 1999

Delivered on : 3 June 1999

JUDGMENT

KRIEGLER J:

Introduction

[1] Each of the four cases considered in this judgment is concerned with the constitutional validity of one or more provisions of the South African law relating to bail. These provisions relate to the admissibility of the record of bail proceedings at trial, the test in the grant of bail particularly where serious offences are concerned, and access to the police docket for purposes of a bail application. Some provisions are challenged in more than one of the cases; several of the challenges rely on more than one constitutional ground and many of the provisions being challenged are interrelated. It is therefore sensible to examine the various constitutional challenges together rather than on a case-by-case approach.

[2] Although the transition to the new dispensation kept the general body of South African law¹ and the machinery of state² intact, the advent of the Bill of Rights³ exposed all existing legal provisions, whether statutory or derived from the common law, to reappraisal in the light of the new constitutional norms heralded by that transition.⁴The retention of the existing legal and administrative structures facilitated a reasonably smooth transition from the old order to the new. But the transition did have an effect on the country’s criminal justice system. People who had acquired specialised knowledge of the system, and had become skilled and sure-footed in its practice, were confronted with a new environment and lost their confidence. Particularly in the lower courts, where the bulk of the country’s criminal cases is decided, judicial officers, prosecutors, practitioners and investigating officers were uncertain about the effect of superimposing the norms of a rights culture on a system that had evolved under a wholly different regime; and about the effect of that superimposition in a given case.⁵ Bail was no exception. On the contrary, much of the public debate,⁶ and much of the concern in official circles about law enforcement has been directed at the granting or refusal of bail.⁷

[3] The origins of bail are “obscured in the mists of Anglo-Saxon history”⁸ and its modern dimensions remain “an incoherent amalgam of old and new ideas serving more to defeat than to achieve the aims of the criminal process”.⁹ In South Africa, judicial pronouncements on the topic have been called “labyrinthine”.¹⁰ There is murkiness even at the elemental level of the source(s) of South African judicial power to grant bail, i.e. whether the power derives exclusively from - and is circumscribed by - chapter 9 of the Criminal Procedure Act¹¹ (the CPA) or whether there is a parallel reservoir of “inherent” or “common law” power on which a judge can draw.¹²

[4] An important aim of this judgment is to show that the application of constitutional norms to the law and practice of bail does not complicate the task of judicial officers but clarifies it. At the same time it will be shown how recent amendments to the relevant statutory provisions are to be harmonised with those constitutional norms.

[5] The starting point of the exercise is s 35(1)(f) of the Constitution which provides the principal template against which Chapter 9 of the CPA must be measured. It reads as follows:¹³

“Everyone who is arrested for allegedly committing an offence has the right . . . (f) to be released from detention if the interests of justice permit, subject to reasonable conditions.”

The context of that provision is the rest of s 35(1) and s 35(2), which protect the rights of arrested and detained persons. Section 35(1) spells out the rights of arrested persons: the right to remain silent; to be informed of the right and of the consequences of waiving it; and the right not to be compelled to make an admission or confession. Then, particularly relevant to the present context, s 35(1) affords an arrestee the right to be brought before a court as soon as reasonably possible, but within 48 hours of arrest, and at that first appearance to be charged, or told the reason for further detention, or released. Section 35(2) likewise makes detailed provision for the protection of the interests of detainees, assuming that detention is constitutionally acceptable.

[6] Section 35(1)(f) in its context, makes three things plain. The first is that the Constitution expressly acknowledges and sanctions that people may be arrested for allegedly having committed offences, and may for that reason be detained in custody. The Constitution itself therefore places a limitation on the liberty interest protected by s 12.¹⁴ The second is that notwithstanding lawful arrest, the person concerned has a right, but a circumscribed one, to be released from custody subject to reasonable conditions. The third basic proposition flows from the second, and really sets the normative pattern for the law of bail. It is that the criterion for release is whether the interests of justice permit it. What that term means, both in the Constitution and in s 60 of the CPA, is central to much of this judgment, and will be thrashed out later. All that need be said at this stage is that s 35(1)(f) postulates a judicial evaluation of different factors that make up the criterion of the interests of justice, and that the basic objective traditionally ascribed to the institution of bail, namely to maximise personal liberty,¹⁵ fits snugly into the normative system of the Bill of Rights. It is accordingly important that the rules of that institution, which are said by some to be at odds with those values, be scrutinised systematically. The four cases before us offer an appropriate framework to do so.

[7] The next point of reference is chapter 9 of the CPA. That is where the effect, rules and consequences of bail are primarily to be found. Chapter 9 of the CPA is therefore not only an invaluable point of reference in any general enquiry into the law of bail, and a primary source to be consulted in looking for an answer to any specific bail question, but provides a comprehensive framework in which any answers can be judged. Tiresome though it may be, it is therefore necessary to outline the basic provisions of the whole of chapter 9.¹⁶

“58. Effect of bail

[A]n accused who is in custody shall be released from custody upon payment of . . . the sum of money determined . . . and . . . the release shall . . . endure until a verdict is given . . . or . . . sentence is imposed . . .

59. Bail before first appearance. . .

(1) (a) An accused . . . in custody in respect of any [specified minor] offence ... may . . . be released on bail . . . by any police official of . . . the rank of non-commissioned officer . . .

. . . .

[ Sub-s (2) affords such “police bail” the same effect as ordinary bail.]

59A. Attorney-general may authorise release on bail

(1) [An attorney-general or an authorised prosecutor may, in consultation with the investigating officer and in respect of sch 7 offences, grant bail.]

. . . .

(4) [Such release then endures until the accused’s first appearance in court.]

(5) [The court then extends, amends or considers bail afresh in terms of s 60.]

. . . .

(7) [This bail is tantamount to ordinary bail under s 60.]

60. Bail application . . . in court

(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.

. . . .

(c) If . . . bail is not raised by the accused or the prosecutor, the court shall ascertain from the accused whether he or she wishes [bail] to be considered . . .

(2) In bail proceedings the court -

(a) may postpone . . . such proceedings . . .;

(b) [may acquire undisputed information informally];

(d) shall . . . require . . . the prosecutor to place on record the reasons for not opposing . . . bail . . .

(3) [If reliable or sufficient information or evidence is lacking the court shall order its production.]

(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 will commit a Schedule 1 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 jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;

(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; or [sic]

(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;

(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 1 while released on bail; or

(h) any other factor which in the opinion of the court should be taken into account.

(6) In considering [the ss (4)(b) grounds (evasion of trial)], the court may take into account -

(a) [Any ties of the accused to the place of trial]

(b) [The existence and location of assets held by the accused]

(d) [Could the accused afford to forfeit bail]

(e) [The prospects of possible extradition]

(f) [The nature and gravity of the offence]

(g) [The strength of the state case and the incentive to flee]

(h) [The nature and gravity of the likely penalty]

(i) [The efficacy of bail and enforcibility of bail conditions]

(j) [Any other factor.]

(7) In considering [the ss 4(c) ground (interfering with witnesses or evidence)] the court may . . . take into account -

(a) [Whether the accused is familiar with witness or the evidence]

(b) [Whether witnesses have made statements]

(d) [The accused’s relationship with witnesses and the extent to which they can be influenced]

(e) [The efficacy or enforcibility of bail conditions]

(f) [The accused’s access to evidence to be presented at the trial.]

(g) [The ease with which evidence can be concealed or destroyed]

(h) [Any other factor]

(8) In considering [the ss 4(d) ground (undermining the system of justice)] the court may take into account

(a) [Whether the accused supplied false information at arrest/during bail proceedings]

(b) [Whether the accused is in custody on another charge or on parole

(d) Any other factor

(8A) In considering whether the ground in subsection (4) (e) has been established, the court may, where applicable, take into account the following factors, namely-

(a) whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;

(b) whether the shock or outrage of the community might lead to public disorder if the accused is released;

(d) whether the sense of peace and security among members of the public will be undermined or jeopardized by the release of the accused;

(e) whether the release of the accused will undermine or jeopardize the public confidence in the criminal justice system; or

(f) 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;

(f) the state of health of the accused; or

(g) 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 6, 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, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release;

(b) in Schedule 5, but not in Schedule 6, 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, adduces evidence which satisfies the court that the interests of justice permit his or her release.

(11A) (a) If the attorney-general intends charging any person with an offence . . . in Schedule 5 or 6 the attorney-general may . . . issue a written confirmation . . . that he or she intends to charge the accused with an offence . . . in Schedule 5 or 6.

(b) The written confirmation shall be handed in . . . by the prosecutor . . . and forms part of the record . . .

(c) Whenever the question arises in . . . [or] during bail proceedings whether any person is charged . . . with an offence . . . in Schedule 5 or 6, a written confirmation issued by an attorney-general under paragraph (a) shall, upon its mere production . . . be prima facie proof of the charge ...

(11B) (a) In bail proceedings the accused . . . is compelled to inform the court whether-

(i) the accused has previously been convicted of any offence; and

(ii) there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges.

(b) Where the legal adviser of an accused . . . submits the information . . . the accused shall be required by the court to declare whether he or she confirms such information . . .

(c) The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.

(d) An accused who wilfully-

(i) fails or refuses to comply with the provisions of paragraph (a); or

(ii) furnishes the court with false information required in terms of paragraph (a),

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(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 . . . may order that the accused-

(a) deposit with the clerk of the court [etc] the sum of money determined by the court . . .; or

(b) shall furnish a guarantee . . .

(14) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for purposes of his or her trial.

[8] In relation to the remaining provisions of chapter 9, little need be noted here. In general, they deal with the amendment of bail conditions (s 63), the recording of bail proceedings (s 64), appeals (s 65), breach, forfeiture, cancellation and remission of bail (ss 66 - 70) and, lastly, with juvenile detention in lieu of bail (s 71).

[9] Mere perusal of the compendium in chapter 9 highlights a number of basic propositions about our law of bail that are relevant in the cases currently under scrutiny. The first and most obvious observation is that the chapter creates a complex and interlocking mechanism that is clearly designed to govern the whole procedure whereby an arrested person may be conditionally released from custody, prescribing the components of that mechanism in minute and sequential detail.¹⁷ Manifestly the lawgiver, both in its initial formulation of the chapter and more pertinently by means of the extensive supplementation recently added to s 60,¹⁸ intended to provide a comprehensive - if not exhaustive - set of prescripts governing the whole procedural terrain of bail.

[10] The second general observation to be made about chapter 9 arising from the overview is that the grant or refusal of bail is unmistakably a judicial function.¹⁹ In that respect it ties up with chapters 4 and 5 of the CPA, dealing respectively with the various methods of securing the attendance of an accused person in court and with the most invasive of those methods, namely arrest. The underlying policy is plain. Although societal interests may demand that persons suspected of having committed crimes forfeit their personal freedom pending the determination of their guilt, such deprivation is subject to judicial supervision and control. Moreover, in exercising such oversight in regard to bail the court is expressly not to act as a passive umpire. If neither side raises the question of bail, the court must do so.²⁰ If the parties do not of their own accord adduce evidence or otherwise produce data regarded by the court to be essential, it must itself take the initiative.²¹ Even where the prosecution concedes bail, the court must still make up its own mind.²² In principle, that policy of the CPA, and the consequential provisions mentioned, are in complete harmony with the Constitution. The potential problems lie elsewhere.

[11] Furthermore, a bail hearing is a unique judicial function. It is obvious that the peculiar requirements of bail as an interlocutory and inherently urgent step were kept in mind when the statute was drafted. Although it is intended to be a formal court procedure,²³ it is considerably less formal than a trial. Thus the evidentiary material proffered need not comply with the strict rules of oral or written evidence. Also, although bail, like the trial, is essentially adversarial, the inquisitorial powers of the presiding officer are greater. An important point to note here about bail proceedings is so self evident that it is often overlooked. It is that there is a fundamental difference between the objective of bail proceedings and that of the trial. In a bail application the enquiry is not really concerned with the question of guilt. That is the task of the trial court. The court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The focus at the bail stage is to decide whether the interests of justice permit the release of the accused pending trial; and that entails in the main protecting the investigation and prosecution of the case against hindrance.

[12] The third observation relates to the seriousness with which the legislature views bail and is underscored by the fact that there were major amendments to the relevant legislation in 1995²⁴ and another in 1997.²⁵ The 1995 amendment substituted a brand new and radically different section for the principal provision relating to bail, namely s 60 of the CPA. That section, which had stood unamended since its adoption in 1977, used to be a simple and prosaic companion to ss 58 and 59. As we have seen above,²⁶ the three sections formed the introduction to chapter 9 of the CPA, and between them governed the effect of bail generally; police bail; and bail for an accused in custody at or after the first appearance in a lower court. Section 60 did no more than to state the principle that such an accused could apply for bail and to prescribe the requisite procedure.

[13] By contrast, the new section²⁷ contained no less than 11 subsections dealing in considerable detail with both substantive and procedural matters. In the main, the 1995 amendment brought about three important changes in s 60. First, the new paragraph (1)(a) proclaimed the right to bail unless it is in the interests of justice that the accused be detained. That was an echo of the right contained in s 25(2)(d) of the interim Constitution.²⁸ Second, sub-ss (4) to (9) provided a compendium of criteria that had to be considered and weighed; and, in the third place, sub-s (11) singled out for special and more stringent treatment persons awaiting trial on certain very serious offences (listed in sch 5) or who had allegedly committed certain less serious offences (listed in sch 1). For the rest, the provisions of the 1995 amendment relating to s 60 were of an ancillary and procedural nature. The changes clearly constituted an attempt on the part of the Legislature to align the principle of bail with the constitutional norm of s 25(2)(d) of the interim Constitution and to tighten up and clarify the whole bail system.

[14] Barely two years later the 1997 amendment was adopted.²⁹ It, too, was aimed at generally stiffening bail requirements and procedures. The amendments to s 60 that are germane to the current enquiry were, in the first instance, that the criterion of “the public interest” in paragraph (4)(a) was expanded into “the public order” and “public peace or security” and enacted as a new paragraph, (4)(e).³⁰ Concomitantly a new sub-s (8A) was added. An important feature of the new sub-ss (4)(e) and (8A) is that, for the first time in South African bail legislation, attention is focused, not on the accused, but on the community. The constitutional propriety of this shift will be discussed later.

[15] Clearly the legislative intention remained to curtail bail for suspects in very serious cases. To that end sub-s (11), which had been introduced in 1995, was replaced by an even more stringent provision relating to bail for persons facing serious charges, which differentiates between serious cases (listed in sch 5) and extremely serious cases (listed in a new sch 6). In a new sub-s (11A) Parliament also gave sub-s (11) procedural teeth by providing for a mechanism to establish when a sch 5 or 6 offence was at stake. Further, in a new sub-s (11B), another legislative innovation was introduced: an applicant for bail became obliged to furnish information to the court (upon pain of imprisonment for withholding it or furnishing it untruthfully) and the record of bail proceedings was made part of the trial record. To round off the innovations, the 1997 amendment brought in a special provision restricting an accused’s access to the police docket, namely sub-s (14).³¹

Facts of the cases

[16] Having sketched the background, we can now turn to an outline of each case, identifying the particular aspects of the system it seeks to impugn and detailing the challenges it presents. In summary the cases raise the following challenges:

a. Dlamini: the rule of evidence relating to the admissibility at the main trial of statements made during the bail application;

b. Schietekat / Joubert: sub-ss 60(4) - (9) offend the separation of powers doctrine generally, and, sub-ss (4)(a) and (5) list factors unrelated to trial, as well as sub-ss (4)(e) and (8A) frustrate the right to bail; s 60(11B)(c) unfairly makes the bail record part of the trial record; and s 60(11)(a) effectively denies bail to persons charged with certain very serious offences;

c. Dladla: s 60(11)(a); s 60(11B)(c); and s 60(14) which limits, for the purpose of bail proceedings, an arrestee’s right of access to information contained in the police docket.

Dlamini³²

[17] This is an appeal against a judgment handed down in a criminal trial in the Natal High Court. The crisp question it raises is whether the Constitution automatically and without more renders statements made by an accused person when applying for bail inadmissible at that person’s subsequent trial. If it does, it would be a material departure from our existing law: it is a well-recognised rule of evidence that a cross-examiner may use an inconsistent statement made by a witness on a previous occasion to discredit or controvert the testimony of that witness;³³ and our criminal procedure allows otherwise admissible utterances made by or on behalf of an accused person during bail proceedings to be used against that person at a subsequent trial.³⁴ The prosecution is entitled to prove the record of the bail application in the course of its case,³⁵ or it can put the record (or the relevant passage(s) thereof) to the accused in cross-examination. The former is often done when a plea explanation³⁶ proffered at the arraignment stage of the trial conflicts with what the accused contended earlier in the course of bail proceedings, and the latter when a prosecutor seeks to impugn an accused’s credibility by probing in cross-examination for self-contradictions by contrasting evidence at trial with previous statements. Records of bail applications are fruitful sources of such conflicting previous statements by an accused.

[18] Dlamini’s case is a good example. At his arraignment the appellant pleaded not guilty to charges of murder and robbery, intimating through his counsel that his defence was an alibi. The prosecution adduced no direct evidence linking the appellant with the crimes, but his alibi was dealt a body blow when the prosecution proved that, shortly after his arrest and while asking for bail in the magistrates’ court, the appellant had told the presiding magistrate that he had been present when the crimes were committed by his co-accused, but had acted under compulsion by the latter.

[19] At the trial the admissibility of the record of the bail proceedings was challenged on behalf of the appellant.³⁷ The thrust of the objection was that under the Constitution statements by an accused person at a bail application are in principle never admissible against him or her at trial.³⁸ The challenge failed. After a trial-within-a-trial the record of the bail proceedings was ruled admissible and duly proved as part of the prosecution case. The appellant did not testify in his defence. He was convicted and successfully applied to the learned trial judge for a certificate preparatory to an application for leave to appeal directly to this Court against his conviction.³⁹ We, in turn, granted leave so to appeal.⁴⁰

Schietekat

[20] This case raises questions that overlap with Dlamini, and for that reason it is convenient to outline it next. It is an appeal by the state against an order in the Cape of Good Hope High Court striking down as unconstitutional several of the new provisions of s 60 of the CPA outlined above.⁴¹ The validity of that constitutional condemnation will be considered later together with the evaluation of similar challenges in the cases of Joubert and Dladla. What should be highlighted at this stage regarding Schietekat is an additional and peripheral constitutional question that overlaps with Dlamini. It relates to the constitutional propriety of exposing an applicant for bail to cross-examination that may later prove to have impaired that person’s immunity against self-incrimination. The circumstances in which those questions arise in Schietekat’s case are unusual.

[21] Schietekat is a middle-aged man with a long history of paedophilia, including an effective 14½ years imprisonment on counts of rape, attempted rape and indecent assault. The complainants were girls ranging from three to fourteen years in age. A year after his release in May 1997, he was acquitted on a child molesting charge and two months later he was again arrested on a charge of having indecently assaulted a three year old girl.

[22] A hotly contested bail application in the magistrates’ court ensued. The magistrate eventually refused bail. He accepted that (a) there was no risk that Schietekat would abscond, (b) there was likely to be a long delay before the trial, and that (c) there would be serious financial harm to Schietekat as well as his business partner and their employees. He found, however, that there were important considerations against the grant of bail, the most important of which was that Schietekat’s record of previous convictions, his poor parole record and his lack of insight into his problem, rendered his release on bail a serious risk to the community.⁴² He also found that, apart from public shock and anger that would be generated by Schietekat’s release, confidence in the administration of justice would be shaken.

[23] The judgment of the court below⁴³ correctly castigates the bail hearing as “a mockery of judicial behaviour” because the prosecutor was allowed to exceed the bounds of proper cross-examination by bullying, badgering and humiliating Schietekat. The real problem with the evidence in the context of this case lies elsewhere, however, and that is where it ties up with Dlamini’s case. Indeed, the events in Schietekat’s case show more vividly than Dlamini that evidence can prejudice an accused person.

[24] Schietekat’s attorney, accepting that the application was governed by s 60(11)(a) of the CPA, read with sch 6 thereto,⁴⁴ briefly led his client on his personal circumstances and his previous convictions and then proceeded to get him to put on record a long and detailed explanation of his defence to the charge. Schietekat’s evidence in the bail hearing, if admitted at the trial, could possibly corroborate the evidence of a single identifying witness. Therefore, in Schietekat’s case, no less than that of Dlamini, the admission at trial of what was said by the accused at preceding bail proceedings could be prejudicial to the accused.

[25] Reverting to the history of the matter: an appeal was noted to the High Court on purely factual grounds but when the matter came to be argued in the High Court, the focus had shifted from factual to constitutional considerations. The learned judge dismissed the appeal there and then on the facts.⁴⁵ Despite having thus dismissed the bail appeal, the learned judge devoted the rest of his judgment⁴⁶ to an analysis of the statutory and constitutional aspects of the law relating to bail and concluded:

“In the result I make the following further order:

1. In terms of section 172(1) of the Constitution I declare that subsections (4) to (9) inclusive and subsection (11B)(c) of Act 51 of 1977 as amended by Act 85 of 1997 are invalid to the extent of their inconsistency with the Constitution.

2. In particular I declare that they are invalid in their entirety.

3. The Attorney-General or any other organ of State is free to appeal or apply directly to the Constitutional Court to vary or confirm this order of constitutional invalidity.”

The Director of Public Prosecutions, Cape of Good Hope, was confronted with a curious situation: notwithstanding the successful opposition to Schietekat’s appeal to the High Court against the magistrate’s refusal to grant him bail, a vital part of the statutory foundation on which the whole system of bail rested, had been struck down as constitutionally invalid. He had won the bail battle but had lost a constitutional war.

[26] The Director noted an appeal to this Court,⁴⁷ challenging the striking down as a gross irregularity because constitutional invalidity had not been in issue in the magistrates’ court nor in the notice of appeal and, when it had been raised in the heads of argument filed on behalf of Schietekat, the state had sought an opportunity to adduce evidence justifying the impugned statutory provisions, should the court be inclined to entertain the new angle of attack. Without having afforded the prosecution such an opportunity, the court below had then struck down the provisions in question. Although the state did not expressly abandon the irregularity point, the argument (both written and oral) submitted in this Court challenged the striking down on its constitutional merits only.

[27] The state did not challenge the validity or appropriateness of the striking down on the basis that it had been irrelevant to the issues before the court below once the bail appeal had been disposed of on the facts. Accordingly, no argument was addressed to this Court on the question of the possible mootness of a constitutional issue in such circumstances; nor is it necessary for the determination of this case to resolve it. It would therefore be inadvisable to express any firm views on the topic. Nevertheless it should be emphasised that such silence does not signify approval of an order of constitutional invalidity being made in the absence of any remaining triable issue. Indeed, this Court has long since held that as a matter of judicial policy, constitutional issues are generally to be considered only if and when it is necessary to do so.⁴⁸

[28] The question of possible mootness - and a related question of standing - arises in another way in this case. While the appeal was pending and after written argument had been filed by the state, the charge against Schietekat was withdrawn and he was discharged from custody. However, counsel who had already been briefed on behalf of Schietekat⁴⁹ were prepared to continue to represent him and appeared at the hearing. We still had to deal with Joubert’s case, in which an identical order of constitutional invalidity had been made by the same judge, but where there was no appearance on behalf of Joubert. We accordingly invited counsel for Schietekat to present their argument and wish to record our indebtedness to them for their most helpful contribution to the forensic debate.

[29] There is another unusual feature about Schietekat’s case. Before the state had lodged its notice of appeal to this Court against the order of constitutional invalidity of sub-ss 60(4) to (9) and (11B)(c) of the CPA, Schietekat applied to the Court below for leave to appeal against the dismissal of his bail appeal on the merits. In that application the learned judge subsequently handed down a written judgment, not only refusing leave for stated reasons, but elucidating the effect of the earlier judgment.

Joubert⁵⁰

[30] The judgment in this case was handed down together with that in Schietekat and the two expressly have to be read together.⁵¹ In this instance, too, there had been an urgent appeal against a refusal of bail in the magistrates’ court, an extemporaneous order by the judge on appeal and a reserved judgment. Joubert was charged with having murdered his wife by shooting her in the head with his handgun.⁵² Joubert’s counsel handed in a brief and guardedly worded affidavit by his client, contending that the fatal shot had gone off accidentally in the context of “an excessive intake of alcohol and dagga” and stating that, acting on legal advice, he was exercising his right to refuse to disclose the full extent of his defence at that stage. However, other evidence was led by both sides.

[31] The magistrate approached the application on the basis that Joubert bore an onus to establish that his release was in the interests of justice. Remarking in passing that there was no evidence as to the events of the fatal evening, the magistrate refused bail for a number of factual reasons.⁵³ That decision was taken on appeal on the basis that the magistrate should have held that Joubert “had satisfied the requirements of s 60(11)(b) of Act 51 of 1977" and had shown “that the interests of justice permitted his release on bail.”⁵⁴ The magistrate intimated that he had nothing to add to his oral judgment and the case was argued on appeal purely on the facts. The learned judge issued an order for Joubert’s conditional release forthwith, the reasons to be furnished later. Those reasons base the reversal both on a rejection of the magistrate’s factual findings⁵⁵ and on a ruling that sub-ss (4) to (9) of s 60 of the CPA are unconstitutional.⁵⁶ The judgment concludes with the following observation and orders:

“Unlike the position that obtained in the Schietekat matter I find however that I am obliged to exercise the powers conferred on me in terms of the Constitution. Pursuant to section 172 of Act 108 of 1996 I accordingly make the following order:

2. In particular I declare that they are invalid in their entirety.

3. The Attorney-General or any organ of State is free to appeal or apply directly to the Constitutional Court to vary or confirm this order of constitutional invalidity.

4. By reason of the exercise by me of the powers conferred by section 65 of the Criminal Procedure Act 51 of 1977 as amended I make no order as contemplated by section 172(2)(b) of the Constitution.

5. My order, Annexure “X” hereto, stands.”

[32] As in Schietekat, it is not entirely clear why it was found necessary,⁵⁷ once a dispositive finding on the facts had been made, to consider and rule on the constitutionality of sub-ss 60(4) to (9) of the CPA. Even if that question had been raised in the appeal (which it had not), the validity of those subsections had been rendered irrelevant once the appeal had been disposed of on the facts. It is even more difficult to understand why the order of invalidation swept up sub-s (11B)(c) of s 60 as well. That subsection was at no stage in issue in Joubert’s application for bail, nor did it feature in the appeal, save tangentially.⁵⁸ But that is largely water under the bridge. As remarked earlier,⁵⁹ the jurisprudential status of such a hypothetical order of constitutional invalidity or, to put it differently, the question whether a court has jurisdiction to strike down a statute in the absence of a live constitutional issue warranting such conduct, was not argued in these proceedings and should stand for examination and resolution at an appropriate time. For the present, this Court is called upon to confirm, vary or set aside the order of invalidation made by the court below in respect of each of the subsections affected.⁶⁰ One of them, sub-s 60(11B)(c), comes up for consideration again in the fourth case being considered conjunctly here, namely that of Dladla, to which I now turn.

Dladla and Others

[33] Apart from sub-s 60(11B)(c) of the CPA, this case challenges sub-ss 60(11)(a) and (14). The case comes before this Court in the following way. Dladla and his four co-applicants appeared in the Protea magistrates’ court, Soweto, during October 1998 on nine counts of murder and five of attempted murder. The state alleged that they had committed the crimes in the course of an organised campaign of violence relating to a so-called taxi war.⁶¹ Consequently they were struck by the provisions of sub-s (11)(a), read with sch 6, which meant that their prospects of being admitted to bail pending trial were materially diminished.⁶² This they found out when their legal representatives applied (unsuccessfully), first to the prosecutor and then to the court, for copies of the statements in the police docket relevant to the charges against them. The refusal of docket access was based on the provisions of sub-s (14), which give the prosecutor the right to bar access by the defence to the police docket for the purposes of a bail application.

[34] This setback prompted an application to this Court for direct access⁶³ to test the constitutional validity of not only sub-ss (11B)(c) and (14), but also of sub-s (11)(a), and the proceedings in the magistrates’ court were postponed. Although the application for direct access went procedurally astray, it was eventually enrolled for hearing together with the appeals in Schietekat and Joubert. At the hearing we invited counsel to address argument on both the merits as well the question of condonation. Mr d’Oliviera, who spoke not only as counsel for the respondent in the Dladla case but with the authority of his office as the Deputy National Director of Public Prosecutions, abandoned the state’s original opposition to the grant of condonation and actively supported the application for direct access.

[35] We have decided that it would indeed be in the interests of justice to grant direct access in Dladla and to consider the constitutional challenges the case presents, despite the various procedural shortcomings in its presentation. In doing so, we put substance above form and follow the precedent of S v Zuma and Others,⁶⁴ where, for much the same reasons as are apparent here, we accepted an abortive referral as a case for direct access. This case crisply raises most of the constitutional issues mentioned at the outset of this judgment, issues involving the fundamental rights of many thousands of arrested persons and having an important bearing on the day-to-day administration of the criminal justice system. It is manifestly in the interests of justice that widespread uncertainty about the constitutional validity of important elements of an institution as important and ubiquitous as bail be laid to rest.⁶⁵

Constitutionality of the impugned sections

Section 60(4) - (9)

[36] It is appropriate now to consider the cogency of the various challenges brought against the constitutionality of the impugned subsections of s 60. I deal first with the contention that sub-ss 60(4) to (9) offends against the separation of powers principle. Thereafter I address separately the self-contained and specific attack against, first, paragraph (a) of s 60(4) on the ground that it is repugnant to the rule of law and inconsistent with s 12(1) of the Constitution and, second, paragraph (e) of s 60(4) on the ground that it frustrates the right to bail.

Separation of powers

[37] Subsections (4) to (9) were introduced by the 1995 amendment and then amplified by the 1997 amendment. Patently the intention was not only to provide in meticulous detail how bail proceedings are to be conducted, but to provide judicial officers with clearly demarcated guidelines to be observed in the exercise of their adjudicative functions in relation to bail. Previously there had been only s 58, saying tersely what the effect of bail was, and s 60, which empowered a court to order the conditional release on bail of an accused in custody, without elaborating on the criteria to be taken into account, or the procedure to be followed. As remarked at the outset,⁶⁶ even before the advent of the constitutional era in South Africa the case law on the topic had been disharmonious. In addition, the advent of a constitutionally based human rights culture and specifically the demands of s 25(2)(d) of the interim Constitution required acknowledgment. It was in that context that the 1995 amendment aimed at giving a theoretical foundation for adjudicating bail cases and superimposing a practical framework.

[38] The theoretical basis was established by transplanting into s 60(1) the principle established by s 25(2)(d) of the interim Constitution that every arrestee has the right “to be released from detention . . . unless the interests of justice require otherwise.”⁶⁷ The relevant part of the new s 60(1)(a) is a faithful reproduction: “An accused . . . in custody ... shall be entitled to be released on bail . . . unless . . . it is in the interests of justice that he or she be detained . . .”. After the Constitution came into operation and s 25(2)(d) was replaced by s 35(1)(f), s 60(1)(a) was not correspondingly amended. It therefore still echoes the former provision, although a person’s constitutional right to release from custody is now dependent on a finding that the interests of justice permit it. Consequently, s 60(1)(a) favours liberty more than the minimum required by the Constitution.

[39] The practical superstructure was provided in s 60(4), as supplemented by sub-ss (5) to (8A), read with sub-ss (9) and (10). Here the legislature, drawing on the case law as collated in S v Acheson,⁶⁸ tabulated the various criteria that ordinarily bear on the question whether or not bail should be granted in a particular case and, if it should, what conditions should be imposed.⁶⁹ This, so it was held in Schietekat and Joubert, offended the separation of powers doctrine.⁷⁰

[40] Inasmuch as sub-ss (5) to (8A) do no more than flesh out the criteria identified as crucial in paragraphs (a) to (e) of sub-s (4) respectively, it is unnecessary to look beyond the list of factors in paragraphs (a) to (e).⁷¹ There is nothing really new in the criteria set out in those paragraphs. The factors listed there can in the main be traced to our case law, and were identified by the South African Law Commission.⁷² On its recommendation statutory guidelines were provided for the guidance of courts considering bail applications. But that is not where the learned judge in Schietekat saw the snag. His objection relates to the way the legislature went about providing the guidance in the opening sentence of s 60(4), namely, by saying: “The refusal to grant bail . . . shall be in the interests of justice where one or more of the following are established . . .”. That, so the judge held, was a deeming provision under the guise of which Parliament prescribed to the courts what is and what is not in the interests of justice, thus usurping the judiciary’s constitutionally entrenched power to decide that question.

[41] One must endorse the objection to a deeming provision in a statute which has the effect of obliging a court to come to an unjust factual conclusion conflicting with that to which an objective evaluation would lead and which might also conflict with a provision of the Bill of Rights. This Court has on several occasions struck down such enactments.⁷³ But the question here is whether the impeached subsection is indeed such a provision. If one were to read the opening sentence of sub-s (4) without regard to the provisions of sub-ss 60(1)(a) and 60(9) of the CPA and s 25(2)(d) of the interim Constitution, it could possibly be understood as a mandatory injunction to a judicial officer to conclude that something is or is not in the interests of justice, irrespective of the officer’s own conclusion. That certainly would constitute an objectionable deeming provision. But one must read the provisions together. Section 60(1) was designedly reworded by the 1995 amendment so as to bring it into conformity with s 25(2)(d) of the interim Constitution. At the same time the words “the refusal to grant bail and the detention of the accused in custody shall be in the interests of justice”, were used in the opening sentence of sub-s (4) to preface the factors adverse to bail in paragraphs (a) to (d) of that subsection. That made perfectly good sense at the time, where the governing constitutional provision contemplated release unless adverse factors tilted the scale against release. When, however, s 35(1)(f) came into the place of s 25(2)(d), and required something positive to permit release, the wording of s 60(1) and the preamble to sub-s (4) no longer fitted. The attention will shortly be focused on the consequences of this loss of fit, and the use of criterion of the interests of justice. For the moment, it is necessary to complete the challenge to the correctness of the finding in the court below that sub-ss (4) to (9) offend the separation of powers principle.

[42] Making allowance for the substitution of one constitutional formulation of the right to bail for another, it can be seen that sub-ss (4) to (9) are not intended as deeming provisions at all. What those subsections do, is to list, respectively, the potential factors for and against the grant of bail, to which a court must pay regard. Admittedly the drafting is by no means perfect, and can give rise to misunderstanding in other respects which will be considered shortly; but it is clear that neither sub-s (4) nor sub-s (9) commands a court to come to an artificial conclusion of fact. On the contrary, courts are told that if they find one or more of the factors listed in paragraphs (a) to (d) of sub-s (4) to have been established, a finding that continued detention is in the interests of justice will be justified. Put differently, judicial officers are pointed towards categories of factual findings that could ground a conclusion that bail should be refused. By like token a court is not enjoined to accord decisive weight to the one or other or all the personal factors mentioned in sub-s (9). In short, the legislature was providing guidelines as to what are factors for, and what are factors against the grant of bail. Whether and to what extent any one or more of such pros or cons are found to exist and what weight each should be afforded, is left to the good judgment of the presiding judicial officer.

[43] Such guidelines are no interference by the legislature in the exercise of the judiciary’s adjudicative function; they are a proper exercise by the legislature of its functions, including the power and responsibility to afford the judiciary guidance where it regards it as necessary. What is more, it is not only a proper exercise of legislative power, but a very welcome one. Here, in conveniently tabulated form, the CPA now first provides (in s 60(4)(a) to (e)) a checklist of the main criteria to be considered against the grant of bail and then proceeds (in sub-ss (5) to (8A)) to itemise considerations that may go to make up those criteria. Then, in sub-s (9) it provides a list of personal criteria pointing towards the grant of bail.

[44] Because we are dealing with optional criteria, it is logical that each of sub-ss (5) to (8A), in spelling out the components of the criteria, appends at the end of its list of specific factors a deliberately vague hold-all provision permitting any other factor to be taken into account. A court is thus told it may look beyond the listed factors and, even if it does find criteria (listed and/or unlisted) which could tilt the scales against bail, it must ultimately make its own evaluation. A permissive interpretation of sub-s (4) is therefore borne out by the very fact that the succeeding subsections are open-ended. For it would be pointless to lay down factors that have to be considered, and then to tail off lamely with “any other factor”. Even if there were doubt as to the meaning of the preamble in s 60(4), it should, if reasonably possible, be given a meaning which does not conflict with the Constitution. The learned judge was therefore not correct in concluding that Parliament overstepped the mark in enacting sub-ss (4) to (9) of the CPA.

“The interests of justice”

[45] The conclusion that sub-ss (4) to (9) are not constitutionally objectionable on separation of powers grounds, is unfortunately not an end to the enquiry whether they pass constitutional muster. There remain the problems adumbrated earlier arising from the non-fit between their wording and the provisions of s 35(1)(f). And it is not only that s 35(1)(f) replaced the right under the former s 25(2)(d) with the “right ... to be released from detention if the interests of justice permit”, and rendered the wording of sub-s 60(1)(a) and the preamble to sub-s (4) somewhat inapposite, but more because the default position changed: whereas previously the starting point was that an arrestee was entitled to be released, the position under s 35(1)(f) is more neutral. Now, unless there is sufficient material to establish that the interests of justice do permit the detainee’s release, his or her detention continues.⁷⁴

[46] The separate yet associated problem with sub-ss (4) to (9) arises from the use of criterion of the interests of justice. The term “the interests of justice” is of course well known to lawyers, especially students of South African constitutional law.⁷⁵ It is a useful term denoting in broad and evocative language a value judgment of what would be fair and just to all concerned. But while its strength lies in its sweep, that is also its potential weakness. Its content depends on the context and applied interpretation. It is also, because of its breadth and adaptability, prone to imprecise understanding and inapposite use.

[47] Section 60 is a good example of what the consequences of such misapplication can be. In sub-s (1)(a) the term is used to mirror the criterion of the governing constitutional provision.⁷⁶ There the words bear the relatively broad meaning of a value judgment taking into account the arrested person’s right to liberty, as qualified by the lawful arrest. In other words, it is the overall evaluation of all the interests involved. Where the words are used in sub-ss (4), (9) and (10) that meaning does not make sense, however. For instance, in sub-s (9) the court is ordered to weigh “the interests of justice, against the right of the accused to his or her personal freedom”. Obviously there the interests of justice cannot signify the final evaluation of what is best all round, because that would include consideration of the liberty interests of the accused. Likewise, in sub-s (10) where one is told “to weigh up the personal interests of the accused against the interests of justice”, the latter term cannot logically embrace the former. It seems reasonably clear that in those two subsections the drafters of the 1995 amendment had in mind a narrower meaning than the constitutional one used in sub-ss (1), (11) and (12). It is of course most unusual to find one and the same expression used in one and the same statute but not bearing a consistent meaning. In our law, the legislature is presumed to use language consistently,⁷⁷ and one would deviate from the presumption with great hesitation and only if driven to do so, for example, because to do otherwise would lead to manifest absurdity, or would clearly frustrate the manifest intention of the lawgiver.⁷⁸ The present seems to be one of those rare instances where one is compelled to deviate from the presumption of legislative consistency. Here it is plain that the drafters of the 1995 amendment failed to distinguish between two separate and distinct meanings of the phrase “the interests of justice”. In three of the six subsections that were inserted at that stage, the phrase was used synonymously with the interim Constitution’s criterion for bail; but in the case of three of the subsections - (4), (9), and (10) - something different must have been intended. In those subsections the drafters must have contemplating something closer to the conventional “interests of society” concept or the interests of the state representing society.⁷⁹

[48] That must also be the sense in which “the interests of justice” concept is used in sub-s (4). That subsection actually forms part of a functional unit with sub-ss (9) and (10). Between them they provide the heart of the evaluation process in a bail application, sub-s (9) being predominant. If it is read first and “the interests of justice” bears the same narrow meaning akin to “the interests of society” (or the interests of justice minus the interests of the accused), the interpretation of the three subsections falls neatly into place. The opening words of sub-s (9) (“in considering the question in sub-s (4)”) refer to the question whether bail should be refused. That question, so the presiding officer is told, is to be answered by weighing up the societal interests listed in sub-s (4) and detailed in sub-ss (5) to (8A) against the personal interests adverted to in sub-s (9). And whatever the parties may contend, sub-s (10) obliges the presiding officer to ultimately assume responsibility for that evaluation.

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South Africa: Constitutional Court

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98; CCT22/98 ; CCT2/99 ; CCT4/99) [1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999)