SUBJECT: TLI4801
TRIAL AND LITIGATION
SEMESTER 1 – ASSIGNMENT 2
UNIQUE NUMBER: 729371
DATE: 3 AUGUST 2021
70%
1
, (1) In South Africa, the common-law crime of murder is classified as unlawfully and intentionally
causing the death of another human being1. As far as the gravity of this crime is concerned, and its
impact upon the public interest is perpetually injurious, the crime falls under Schedule 52 and 63 of
the Criminal Procedure Act4.
The Criminal Procedure Act supports the implementation and progression for a person suspected of
committing a crime to be released from custody on bail. Nonetheless, the legal framework governing
bail is subjected to the provisions of the Constitution of the Republic of South Africa, 1996. In any
criminal matter, at the core of the criminal procedure rights of arrested persons, s9 necessitates that
all persons be treated equally, s10 enshrines the right of all person to have their dignity respected
and protected, while s12 provides that everyone has the right to freedom and security of the person,
which incorporates the right not to be deprived of freedom arbitrarily or without just cause. The
Constitution does not provide the right to bail, and does not confer a basic entitlement to bail. Though,
it does structure the administration of bail.
As on account of the bail procedures, s35 of the Constitution deals with arrested, accused, and
detained persons. This section invariably ensures that every person that has been arrested for
allegedly committing an offence has the right, inter alia, to be released from detention if the interests
of justice permit, subject to reasonable conditions. The phrase ‘if interests of justice permit’ qualifies
as a compromise between two competing interests, such as the rights of the accused (i.e., the right
to freedom, and to be deemed innocent until proven guilty) and the interests of the public.
Consequently, this aspect imposes constitutional standards whereby bail is granted or denied. The
CPA sets out a considerable number of components that a court may consider when assessing
whether a ground has been established that indicates that the interests of justice do not permit the
release of an accused on bail5. As in the case of Schedule 5 and 6 offences, s60(11) provides that:
Notwithstanding any provision of this Act, where an accused is charged with an offence
referred to –
(a) in Schedule 66, 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 interest of justice permit his or her release;
(b) in Schedule 5, but not 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
1 CR Synman Criminal Law. 5th Edition (Lexis Nexis (Pty) Ltd. South Africa 2002)
2 Schedule 5 offences include:
Murder, attempted murder, rape, drug-related crimes, especially where the drugs are found to be worth R50 000 or
more, corruption, extortion, fraud, forgery or theft to the value of R500 000, the illegal dealing or smuggling of firearms,
and assault on a child under the age of 16.
3 Schedule 6 offences include:
Murder, including premeditated murder, the killing of a law enforcement officer, or killing as a result of rape or robbery
with aggravating circumstances. Also falling in this category is rape, which includes gang rape or rape by a suspect who
knows he is HIV-positive. Rape of a person under 16 years, or a mentally or physically disabled person, is also a schedule 6
offence.
4 51 of 1977
5 Section 60 (4)(a)-(e)
1. Where there is a likelihood that the accused will endanger the safety of the public or will commit a Schedule 1 offence;
2. Where there is a likelihood that the accused will attempt to evade the trial;
3. Where there is a likelihood that the accused will attempt to influence or intimidate witnesses or conceal or destroy
evidence;
4. Where there is a likelihood that the accused will undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system;
5. Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order
or undermine public peace and security.
6 Schedule 6 contains a list of extremely serious offences. It also includes a Schedule 5 offence where the accused has been
previously been convicted of a Schedule 5 offence, or where the offence was allegedly committed while he was released on bail in
respect to a Schedule 5 offence.
2
TRIAL AND LITIGATION
SEMESTER 1 – ASSIGNMENT 2
UNIQUE NUMBER: 729371
DATE: 3 AUGUST 2021
70%
1
, (1) In South Africa, the common-law crime of murder is classified as unlawfully and intentionally
causing the death of another human being1. As far as the gravity of this crime is concerned, and its
impact upon the public interest is perpetually injurious, the crime falls under Schedule 52 and 63 of
the Criminal Procedure Act4.
The Criminal Procedure Act supports the implementation and progression for a person suspected of
committing a crime to be released from custody on bail. Nonetheless, the legal framework governing
bail is subjected to the provisions of the Constitution of the Republic of South Africa, 1996. In any
criminal matter, at the core of the criminal procedure rights of arrested persons, s9 necessitates that
all persons be treated equally, s10 enshrines the right of all person to have their dignity respected
and protected, while s12 provides that everyone has the right to freedom and security of the person,
which incorporates the right not to be deprived of freedom arbitrarily or without just cause. The
Constitution does not provide the right to bail, and does not confer a basic entitlement to bail. Though,
it does structure the administration of bail.
As on account of the bail procedures, s35 of the Constitution deals with arrested, accused, and
detained persons. This section invariably ensures that every person that has been arrested for
allegedly committing an offence has the right, inter alia, to be released from detention if the interests
of justice permit, subject to reasonable conditions. The phrase ‘if interests of justice permit’ qualifies
as a compromise between two competing interests, such as the rights of the accused (i.e., the right
to freedom, and to be deemed innocent until proven guilty) and the interests of the public.
Consequently, this aspect imposes constitutional standards whereby bail is granted or denied. The
CPA sets out a considerable number of components that a court may consider when assessing
whether a ground has been established that indicates that the interests of justice do not permit the
release of an accused on bail5. As in the case of Schedule 5 and 6 offences, s60(11) provides that:
Notwithstanding any provision of this Act, where an accused is charged with an offence
referred to –
(a) in Schedule 66, 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 interest of justice permit his or her release;
(b) in Schedule 5, but not 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
1 CR Synman Criminal Law. 5th Edition (Lexis Nexis (Pty) Ltd. South Africa 2002)
2 Schedule 5 offences include:
Murder, attempted murder, rape, drug-related crimes, especially where the drugs are found to be worth R50 000 or
more, corruption, extortion, fraud, forgery or theft to the value of R500 000, the illegal dealing or smuggling of firearms,
and assault on a child under the age of 16.
3 Schedule 6 offences include:
Murder, including premeditated murder, the killing of a law enforcement officer, or killing as a result of rape or robbery
with aggravating circumstances. Also falling in this category is rape, which includes gang rape or rape by a suspect who
knows he is HIV-positive. Rape of a person under 16 years, or a mentally or physically disabled person, is also a schedule 6
offence.
4 51 of 1977
5 Section 60 (4)(a)-(e)
1. Where there is a likelihood that the accused will endanger the safety of the public or will commit a Schedule 1 offence;
2. Where there is a likelihood that the accused will attempt to evade the trial;
3. Where there is a likelihood that the accused will attempt to influence or intimidate witnesses or conceal or destroy
evidence;
4. Where there is a likelihood that the accused will undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system;
5. Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order
or undermine public peace and security.
6 Schedule 6 contains a list of extremely serious offences. It also includes a Schedule 5 offence where the accused has been
previously been convicted of a Schedule 5 offence, or where the offence was allegedly committed while he was released on bail in
respect to a Schedule 5 offence.
2
