PROJECT: MAJOR LEGISLATIVE OVERHAUL OF SOUTH AFRICA’S BAIL SYSTEM
- Isabel Spies
- Jan 29
- 6 min read
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Public Safety, Victim Protection and the Interests of Justice
South Africa continues to face an exceptionally high violent crime rate, with serious offences such as murder, rape,
aggravated robbery, and gender-based violence (GBV), placing sustained pressure on the criminal justice system.
A significant contributing factor to public concern is the bail system, which directly affects victim safety,
offender accountability, and public confidence in law enforcement and the courts.
In response to prison overcrowding, prolonged pre-trial detention, and constitutional challenges,
the South African Law Reform Commission (SALRC) released Discussion Paper 167:
South Africa’s Bail Dispensation in February 2025.
This paper forms the basis of a wide-ranging legislative review
of Chapter 9 of the Criminal Procedure Act 51 of 1977 (CPA).
The proposed reforms seek to balance the constitutional right to liberty
(Section 35 of the Constitution) with the interests of justice, public safety, and victim protection.
The Minister of Justice and Constitutional Development, Ms. Mmamoloko Kubayi,
has confirmed that bail reform and alternative sentencing form a central pillar of government strategy
to address overcrowding in South Africa’s correctional facilities.
Draft legislative amendments are expected to be finalised by March 2026.
KEY PROPOSED LEGISLATIVE REFORMS (2025–2026):
The following proposals are currently under consideration to modernise and amend the Criminal Procedure Act:
PROPERTY-BASED BAIL:
Allowing accused persons to pledge movable or immovable property as security in place of cash bail.
RECOGNITION OF INDIGENCE:
Courts may be required to presume indigence if bail remains unpaid after seven days.
Where the accused cannot afford minimal bail amounts (often below R1,000), release on warning may be considered.
MANDATORY TRIAL TIME LIMITS:
Accused persons may be released if their trial does not commence within prescribed timeframes (90–120 days), depending on the seriousness of the offence.
ADDRESS VERIFICATION OBLIGATIONS:
A statutory duty may be placed on SAPS to verify an accused person’s residential address within 24 hours to prevent unnecessary remand detention caused by administrative delays.
ELIMINATION OF PRE-TRIAL DETENTION FOR MINOR OFFENCES:
Detention may be prohibited for fine-only offences or minor statutory crimes with low sentencing thresholds.
GENDER-BASED VIOLENCE (GBV): TIGHTENED BAIL CONTROLS
Recognising the extreme risk posed to victims, significant bail-related changes affecting GBV matters were implemented or clarified in 2025:
NO POLICE OR PROSECUTOR BAIL:
Bail in GBV matters may now only be granted by a court.
REVERSE ONUS APPLIES:
The accused must prove why release is in the interests of justice.
INTEGRATED PROTECTION ORDERS:
Courts are duty-bound to consider issuing a final protection order during bail proceedings.
These measures aim to reduce repeat victimisation, intimidation, and fatal outcomes in domestic and intimate partner violence cases.
PRISON OVERCROWDING AND REMAND DETENTION:
Remand detainees currently constitute more than one-third of South Africa’s prison population, many of whom are held for minor offences solely due to their inability to afford bail.
CURRENT INITIATIVES INCLUDE:
BAIL FUND PILOT PROJECTS:
Led by the Judicial Inspectorate for Correctional Services (JICS) to assist low-risk, non-violent offenders.
ALTERNATIVE SENTENCING:
Expanded use of correctional supervision, community service, and diversion programmes for minor offences.
OPERATIONAL AND SYSTEMIC MEASURES UNDER REVIEW:
Expansion of Community Corrections capacity.
Use of electronic monitoring and satellite tracking.
Review and potential repeal of outdated by-laws and petty offences contributing to unnecessary incarceration.
CURRENT BAIL FRAMEWORK IN SOUTH AFRICA:
Bail is regulated by Chapter 9 of the Criminal Procedure Act and guided by Section 35 of the Constitution.
TYPES OF BAIL:
POLICE BAIL (Section 59 CPA) – Minor offences.
PROSECUTOR BAIL (Section 59A CPA) – Schedule 7 offences.
COURT BAIL (Section 60 CPA) – Schedule 5 and 6 serious offences.
SCHEDULE-BASED BURDEN OF PROOF:
SCHEDULE 1 – State must justify refusal.
SCHEDULE 5 – Accused must prove release is justified.
SCHEDULE 6 – Accused must prove exceptional circumstances.
GROUNDS FOR REFUSING BAIL:
Bail may be refused where the accused is likely to:
Endanger victims or the public.
Evade trial.
Interfere with witnesses or evidence.
Undermine the justice system.
VICTIM AND COMMUNITY PARTICIPATION IN BAIL PROCEEDINGS:
Victims have a recognised right to be heard and may:
Submit affidavits.
Raise safety concerns.
Request strict bail conditions.
Trigger consideration of protection orders.
Community organisations may also raise concerns through the prosecution where public safety is affected.
IMPACT OF BAIL ON GBV VICTIMS AND COMMUNITIES:
IMPACT ON VICTIMS:
Heightened fear and re-traumatisation.
Increased risk of repeat violence or homicide.
Silencing of complainants.
Perceived erosion of victim rights.
IMPACT ON COMMUNITIES:
Loss of trust in the justice system.
Normalisation of violence.
Breakdown of public order.
PUBLIC COMMENT AND NATIONAL DEBATE (2025):
Public submissions reflect deep divisions:
Support for reducing poverty-driven detention.
Strong opposition regarding GBV, gangs, and repeat offenders.
Concerns over judicial inconsistency.
Calls for victim-centred justice and accountability.
PUBLIC SAFETY MUST REMAIN PARAMOUNT
While legislative reform of South Africa’s bail system is necessary to address constitutional obligations and prison overcrowding, public safety, victim protection, and crime prevention must remain non-negotiable priorities.
Bail decisions directly affect lives, community stability, and confidence in the rule of law.
Specialised Security Services (SSS) continues to monitor these developments closely and cautions the public to rely on verified facts, not speculation or misinformation. Each bail matter must be assessed on its merits, with particular vigilance in cases involving violent crime, organised criminal activity, and gender-based violence.
Members of the public, victims of crime, and concerned community stakeholders are urged to:
Verify information before sharing it.
Seek professional guidance when affected by bail-related decisions.
Contact Mr. Mike Bolhuis of Specialised Security Services if you believe
a bail matter poses a serious risk to public safety or requires independent investigation
Crime prevention, victim protection, and accountability remain at the core of SSS’s mandate.
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Regards,
Mike Bolhuis
Specialist Investigators into
Serious Violent, Serious Economic Crimes & Serious Cybercrimes
PSIRA Reg. 1590364/421949
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