Months in prison without a bail hearing

These are stories that illustrate the problem:

“They said that I had previous theft cases and I was held in the police cells for almost a week before appearing in front of a judge. On my appearance I was not asked to plead but was told that the case against me had been withdrawn due to lack of evidence,” said Leroy (name changed) from Valhalla Park.

“I was held in police cells for almost two weeks before appearing in front of a magistrate. No one knew where I was and the police kept on refusing me the right to make a telephone call,” said Joe (name changed) of Nooitgedacht.

“I am always the first one to be picked up, beaten and thrown into the police cells. They would leave me there for days and release me again once they have found the actual perpetrator. No apologies, no explanation. They just unlock the cell gate and tell me to leave,” said Vusi (name changed) of Gugulethu.

On 14 October, two Social Justice Coalition activists, Angy Peter and Isaac Mbadu, were arrested on suspicion of murder. Neither have had a proper bail hearing yet. Peter is pregnant. Three times they have appeared in court for a bail hearing but each time there’s been a problem. On the first appearance, the court ran out of time because of other hearings. On the second appearance, the magistrate recused herself because she had given the victim bail a few days before he was murdered. The purpose of the third hearing was to set a date for bail. The date was set for as late as 30 November because the magistrates were scheduled to be in a conference last week. Peter has a leading criminal lawyer representing her; for many prisoners who are represented by public defenders the situation is more hopeless. At Peter’s first bail hearing in October, a man who had spent three months in prison without a bail hearing also had his case postponed.

In recent months, the case of Dudley Lee has been in the news. He contracted tuberculosis in prison and is now suing the state for this. The Constitutional Court recently heard the case. What is also particularly startling about Lee’s case is that he was arrested in 1999 and spent most of the next four years in Pollsmoor prison. About 70 court appearances later he was acquitted, but his life had been destroyed.

Section 35 of the South African Constitution says that an arrested person has the right to be brought before a court “as soon as reasonably possible, but not later than 48 hours after the arrest.” South African law does not specify a precise time before which the bail hearing must be heard, but there have been court judgments which make it clear that the bail hearing is urgent. In a Supreme Court of Appeal case in 2003, Judge Cameron wrote that an application for bail is always urgent. He explained that a quick decision on bail for an accused person is a right independent of whether or not the bail is actually granted. In other words, no matter what the evidence against you, you have the right to have a court urgently decide whether or not you get bail.

In the South Gauteng High Court in 2010, Judge Mokgoatlheng wrote, “A bail application should in principle be heard as a matter of urgency because it affects personal liberty.” He also explained that when it comes to bail hearings, the courts must not sit by passively. They actively have to make sure that an accused person’s right to a bail hearing takes place.

Lukas Muntingh is the coordinator and co-founder of the Civil Society Prison Reform Initiative (CSPRI). This organisation campaigns for good prison governance. He says that some arrested people are waiting longer than 48 hours before appearing before court. He says it is difficult to speculate why, but it may be due to police chasing arrest targets. Arrest target chasing results in poor people, foreigners and sex workers being disproportionately arrested and the system being overloaded. This can cause delays both to bail hearings and arrested people appearing before court within 48 hours.

Keith Gess is a criminal lawyer with Mathewson Gess. He says that the law has provision to protect the rights of the accused; it’s the application of the law that is not giving effect to the law. “Prosecutors are led by the police. Courts are overloaded and don’t have enough capacity to deal with the demand and people end up being victims of the system,” he said. He explains that a short term goal for anyone who finds themselves in a situation where their bail application keeps being postponed is to get enough money to hire a lawyer that will get a court order from a High Court forcing a magistrate to grant bail. But the long term goal must be to make more bail courts available that deal only with bail hearings and nothing else.

Gavin Silber of the Social Justice Coalition has called for an urgent review of the problem to see what can be done to reduce waiting for bail hearings and trials. He says, “There seems to be an acceptance in magistrate courts that excessive delays in bail hearings-while technically in contravention of the law-are acceptable as it happens to thousands of people across the country every day.”

We put questions to the Minister of Justice, but received no response by our publication deadline.