CPR3701 ASSIGNMENT 02
2021 SUPER SEMESTER
Unique number: 645023
, QUESTION 1 – BAIL
Burden and standard of proof
The standard of proof required from an accused where he bears the burden of proof as
provided for in s 60(11)(a) and (b) of the CPA is the civil standard, namely proof on a
balance of probabilities.
In all cases falling outside the ambit of s 60(11)(a) and (b), the burden of proof is on the
prosecution. The standard of proof is proof on a balance of probability. Proof beyond a
reasonable doubt is not necessary because guilt or innocence in respect of the charge
is not the issue.
Section 25(2)(d) of the interim Constitution provided that every person arrested for the
alleged commission of an offence shall, in addition to the rights which he has as a
detained person, have the right ‘to be released with or without bail, unless the interests
of justice require otherwise’.1 This former constitutional provision, which is echoed by
section 60(1)(a) of the CPA, placed the burden of proof on the state.2 It is submitted that
s 35(1)(f) of the new Constitution has not altered the position.3
Proof of previous convictions
According to the courts, previous convictions may be proved by the state in the course
of a bail application.4
In terms of section 60(11B)(a)(i) of the Criminal Procedure Act the accused or his legal
adviser is also compelled to inform the court whether the accused has previously been
convicted of an offence. Sub-section 60(11B)(a)(ii) also states that any charges pending
1
Constitution of the Republic of South Africa 1993.
2
Njadayi 1994 (5) BCLR 90 (E) [96c-d] and Magano v District Magistrate, Johannesburg (1) 1994
(2) SACR 304 (W).
3
Constitution of the Republic of South Africa 1996.
4
Patel 1970 (3) SA 565 (W) [566B-C]; Ho 1979 (3) SA 734 (W); Attorney-General, Zimbabwe v
Phiri 1988 (2) SA 696 (ZHC); Mdleleni 1992 SACJ 197.
2021 SUPER SEMESTER
Unique number: 645023
, QUESTION 1 – BAIL
Burden and standard of proof
The standard of proof required from an accused where he bears the burden of proof as
provided for in s 60(11)(a) and (b) of the CPA is the civil standard, namely proof on a
balance of probabilities.
In all cases falling outside the ambit of s 60(11)(a) and (b), the burden of proof is on the
prosecution. The standard of proof is proof on a balance of probability. Proof beyond a
reasonable doubt is not necessary because guilt or innocence in respect of the charge
is not the issue.
Section 25(2)(d) of the interim Constitution provided that every person arrested for the
alleged commission of an offence shall, in addition to the rights which he has as a
detained person, have the right ‘to be released with or without bail, unless the interests
of justice require otherwise’.1 This former constitutional provision, which is echoed by
section 60(1)(a) of the CPA, placed the burden of proof on the state.2 It is submitted that
s 35(1)(f) of the new Constitution has not altered the position.3
Proof of previous convictions
According to the courts, previous convictions may be proved by the state in the course
of a bail application.4
In terms of section 60(11B)(a)(i) of the Criminal Procedure Act the accused or his legal
adviser is also compelled to inform the court whether the accused has previously been
convicted of an offence. Sub-section 60(11B)(a)(ii) also states that any charges pending
1
Constitution of the Republic of South Africa 1993.
2
Njadayi 1994 (5) BCLR 90 (E) [96c-d] and Magano v District Magistrate, Johannesburg (1) 1994
(2) SACR 304 (W).
3
Constitution of the Republic of South Africa 1996.
4
Patel 1970 (3) SA 565 (W) [566B-C]; Ho 1979 (3) SA 734 (W); Attorney-General, Zimbabwe v
Phiri 1988 (2) SA 696 (ZHC); Mdleleni 1992 SACJ 197.
