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TLI4801 Assignment 2 Semester 1 2022
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TLI4801 Assignment 2 Semester 1 2022
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TECHNIQUES IN TRIAL AND LITIGATIONASSIGNMENT 2
, QUESTION 1
1. Prosecutorial bail
(a) It has been vehemently stated that Bail is non-penal in character. However,
this, in no way, seeks to advance a notion that the accused’s alleged unlawful
conduct preceding the imminent trial must be discounted. In light of the basic
objective of the institution of bail i.e. maximizing personal liberty1, Section
35(1)(f) of the Constitution provides that “ (1) 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 conditions2”,
while section 35(3)(h) of the Constitution3 provides for the presumption of
innocence until proven otherwise (guilty). Moreover, in terms of the provisions
of section 59A of the Criminal Procedure Act 51 of 1977, a director of public
prosecutions (DPP), or a prosecutor authorized thereto in writing by the DPP
concerned, may, in respect of the offences referred to in Schedule 7 and in
consultation with the police investigating officer, authorize the release of an
accused on bail4. This refers to the so-called ‘prosecutorial bail’. In terms of
this section, 59A of Act 51, the prosecutor is endowed with powers to
authorise the release of an accused person, such as Y, on bail for a selection
of offences enumerated in Schedule 7 of the Act. Arson is listed amongst this
numerous clausus of offences and, hence, prosecutorial bail may indeed be
applied for in respect of the release of Y.
(b) In exercising its discretionary powers to grant or refuse bail, the court is
obligated to remain cognizant of some various factors, mentioned in the Act
57, which inform the determination as to whether or not bail should be
granted; bearing in mind that, as mentioned above, bail is non-penal in
character and should be considered with earnest appreciation of the
presumption of innocence principle intimated in section 35(3)(h)5. The court
essentially addresses a singular all-encompassing question consequent to
exercising its discretion to grant or refuse bail, and that is: Will the interests of
justice be prejudiced if the accused is granted bail?
Section 60(4) (a)-(e) of Act 51 lists grounds that serve as an aid for the court
to establish whether the interests of justice do not permit the release of an
accused on bail. Per this section, the refusal to grant bail and the detention of
an accused in custody shall be in the interests of justice where one more of
the grounds intimated therein are established. These grounds are:
1 Joubert Handbook 193 - 194.
2 Section 35(1)(f) Constitution of South Africa Act 108 of 1996.
3 Section 35(3)(h) of the Constitution.
4 Section 59A of the Criminal Procedure Act 51 of 1977.
5 Joubert Handbook 202.
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