, QUESTION 1:
REFORMING BAIL PROVISIONS TO SAFEGUARD SOCIETY FROM GENDER-
BASED VIOLENCE (10 Marks)
The South African bail system is designed to balance the presumption of innocence
with the imperative of protecting society from potential harm. In the context of
gender-based violence (GBV), however, this balance often proves difficult to
achieve. Alleged perpetrators released on bail may pose ongoing risks to victims,
highlighting the urgent need to refine bail provisions in a manner that strengthens
societal protection while adhering to constitutional principles.
1. Limitations of the Current Bail Framework
Section 60 of the Criminal Procedure Act 51 of 1977 establishes the criteria for
granting bail, including considerations of flight risk and potential interference with
witnesses. Nevertheless, the system often fails to adequately address the unique
risks posed by GBV perpetrators. Courts may lack access to comprehensive risk
assessments and may underestimate the ongoing threat of recidivism, especially in
cases involving domestic violence, sexual assault, or patterns of intimidation (Pillay,
2019). Consequently, victims remain vulnerable, and public confidence in judicial
effectiveness is undermined.
2. Recommendations for Reform
a) Implementation of Comprehensive Risk Assessment Tools
Introducing evidence-based frameworks for evaluating the likelihood of reoffending,
including historical offending patterns, the severity of the alleged crime, and
relational factors, would enable courts to make informed decisions. Mandatory
disclosure of prior GBV convictions and behavioural patterns is essential to evaluate
the potential threat accurately (Abrahams & Mathews, 2018).
b) Legislative Emphasis on Victim and Community Safety
Current legislation allows consideration of public safety but does not always require it
as a decisive factor. Explicit statutory prioritisation of victim and community
protection in GBV-related bail applications would ensure courts consistently integrate
safety concerns into decision-making (SALRC, 2020).
REFORMING BAIL PROVISIONS TO SAFEGUARD SOCIETY FROM GENDER-
BASED VIOLENCE (10 Marks)
The South African bail system is designed to balance the presumption of innocence
with the imperative of protecting society from potential harm. In the context of
gender-based violence (GBV), however, this balance often proves difficult to
achieve. Alleged perpetrators released on bail may pose ongoing risks to victims,
highlighting the urgent need to refine bail provisions in a manner that strengthens
societal protection while adhering to constitutional principles.
1. Limitations of the Current Bail Framework
Section 60 of the Criminal Procedure Act 51 of 1977 establishes the criteria for
granting bail, including considerations of flight risk and potential interference with
witnesses. Nevertheless, the system often fails to adequately address the unique
risks posed by GBV perpetrators. Courts may lack access to comprehensive risk
assessments and may underestimate the ongoing threat of recidivism, especially in
cases involving domestic violence, sexual assault, or patterns of intimidation (Pillay,
2019). Consequently, victims remain vulnerable, and public confidence in judicial
effectiveness is undermined.
2. Recommendations for Reform
a) Implementation of Comprehensive Risk Assessment Tools
Introducing evidence-based frameworks for evaluating the likelihood of reoffending,
including historical offending patterns, the severity of the alleged crime, and
relational factors, would enable courts to make informed decisions. Mandatory
disclosure of prior GBV convictions and behavioural patterns is essential to evaluate
the potential threat accurately (Abrahams & Mathews, 2018).
b) Legislative Emphasis on Victim and Community Safety
Current legislation allows consideration of public safety but does not always require it
as a decisive factor. Explicit statutory prioritisation of victim and community
protection in GBV-related bail applications would ensure courts consistently integrate
safety concerns into decision-making (SALRC, 2020).
