, QUESTION 1:
IMPROVING BAIL PROVISIONS TO PROTECT SOCIETY FROM GBV (10 Marks)
Gender-based violence (GBV) remains a pervasive problem in South Africa, with
survivors often at high risk of repeat victimisation when accused persons are granted
bail. The bail system, designed to balance the presumption of innocence with public
safety, requires reforms to adequately protect society, particularly vulnerable groups
such as women and children.
1. Current Challenges in Bail Applications for GBV Cases
The South African Criminal Procedure Act 51 of 1977 (CPA) governs bail applications.
Section 60 provides general grounds for granting or refusing bail, including the
likelihood that the accused will abscond or commit further offences. However, courts
often struggle to assess the risk of recidivism in GBV cases, partly due to inadequate
risk assessment tools and the low prioritisation of GBV in judicial decision-making
(Pillay, 2019). Consequently, perpetrators of domestic violence and sexual offences
are sometimes released, leaving survivors exposed to further harm.
2. Proposed Reforms to Bail Provisions
a) Risk-Based Assessments
Courts should implement structured risk assessments that evaluate the likelihood of
reoffending and the potential danger to victims. Such assessments can consider
prior convictions, the nature of the alleged offence, and the relationship between the
accused and the complainant (Mlambo & Booysen, 2020). Introducing mandatory
reporting of prior GBV-related convictions would enhance judicial awareness of
repeat offenders.
b) Strengthening Section 60 Criteria
Section 60(4) allows courts to consider the protection of the public, but this is not
always rigorously applied. Legislative amendments could explicitly require courts to
weigh the safety of the complainant and the community as a primary factor when
considering bail in GBV cases (Mbatha, 2021).
IMPROVING BAIL PROVISIONS TO PROTECT SOCIETY FROM GBV (10 Marks)
Gender-based violence (GBV) remains a pervasive problem in South Africa, with
survivors often at high risk of repeat victimisation when accused persons are granted
bail. The bail system, designed to balance the presumption of innocence with public
safety, requires reforms to adequately protect society, particularly vulnerable groups
such as women and children.
1. Current Challenges in Bail Applications for GBV Cases
The South African Criminal Procedure Act 51 of 1977 (CPA) governs bail applications.
Section 60 provides general grounds for granting or refusing bail, including the
likelihood that the accused will abscond or commit further offences. However, courts
often struggle to assess the risk of recidivism in GBV cases, partly due to inadequate
risk assessment tools and the low prioritisation of GBV in judicial decision-making
(Pillay, 2019). Consequently, perpetrators of domestic violence and sexual offences
are sometimes released, leaving survivors exposed to further harm.
2. Proposed Reforms to Bail Provisions
a) Risk-Based Assessments
Courts should implement structured risk assessments that evaluate the likelihood of
reoffending and the potential danger to victims. Such assessments can consider
prior convictions, the nature of the alleged offence, and the relationship between the
accused and the complainant (Mlambo & Booysen, 2020). Introducing mandatory
reporting of prior GBV-related convictions would enhance judicial awareness of
repeat offenders.
b) Strengthening Section 60 Criteria
Section 60(4) allows courts to consider the protection of the public, but this is not
always rigorously applied. Legislative amendments could explicitly require courts to
weigh the safety of the complainant and the community as a primary factor when
considering bail in GBV cases (Mbatha, 2021).
