Should we deny bail to those accused of rape?

It’s recently been reported that the NPA in Mpumalanga is keen to oppose bail in the case of a former MEC accused of raping his seven year-old daughter. On the face of it, seems like a good position to take until you really break down what is going on in the system.

The dude isn’t guilty, at least not yet, so in order to deny him bail, and by extension his freedoms, you would need some just reason to do so. This is why bail came about. You can’t exactly lock somebody up for no reason.

In the case of somebody accused of a crime, well, without a conviction, one also lacks that reason.

This was a problem with the philosophy of our law ages ago so additional reasons were created. These include threat of flight risk, danger to the community, danger to the accused from potential vigilante justice, etc.

It was pretty creative, but today the platform for the creativity is as open as ever.

For the most part, all one needs to show is whether it is in the interests of justice to keep an accused locked up.

The propensity for abuse is somewhat curtailed by having to make those representations to a magistrate, but what it does not do is bring the society into its confidence.

Increasingly, South Africans have witnessed accused people on bail committing crimes, and feel that the system as a whole doesn’t adequately protect them. To many, granting of bail is akin to a determination of innocence, sometimes because in effect, it is. And the system doesn’t exactly help with curbing this mentality considering that there are various types of crime in different schedules and differing burdens when it comes to acquiring bail.

For example, if one is accused of a schedule 3 crime, one is likely to get off with a fine and skip the process entirely, but a schedule 6 crime will see one not only needing to show that it is in the interests of justice to release them but also that there are exceptional circumstances justifying granting of bail.

In effect, the accusation determines how easy or difficult it is to get bail and that somewhat perverts the innocent until proven guilty doctrine. Of course one may argue that if the NPA abuses its power or the police overreach, there’s always civil recourse for wrongful arrest but, as the kids say, lol.

It’s not like most people have access to the resources to establish such a case, even if they knew it was a possibility and had the appetite to go for it following the trauma associated with arrest.

So the bail process, while practical, and in many respects pragmatic, is philosophically flawed.

So on this former MEC chap, why does the NPA want to oppose bail so vehemently?

Perhaps they want to send a message or show some force in dealing with a serious spike in violent sexual crime against women and children. That’s the upshot. The negative though is that they are imposing guilt on the dude before he’s found guilty.

Many who are sick of the scourge of such crimes probably don’t care that he’s not found guilty yet. They just want to see some form of justice meted out even if it isn’t exactly “justice”. There is a strong desire to see something done.

Of late, the NPA has been at pains to publicise what it’s been up to and it’s really good. Seeing the convictions and reading the press releases relating to them should instill more confidence in the entity.

But convictions are the goal, not denial of bail.

I’d go as far as to say that if people really understood the legal system and it was swifter, we probably wouldn’t care if a rape accused was free to roam the streets for 3 months while their trial was ongoing to determine their guilt.

Where we do care is whether they “re-offend” in that period, if that period was excessively long, and if the system was adept at separating the guilty from the innocent and locking the prior up.

Denial of bail really only deals with one of those issues and frankly, if preventing a person who has not been convicted from “re-committing” a crime they’ve only been accused of is the purpose of bail, we need to have a long hard look at our legal set up.

Really we do need the national conversation on what we want from the bail process and ask ourselves some difficult questions about philosophical consistency.

Until then, whether this former MEC or any other accused gets bail is largely left to who can best articulate some marginally profound concept of “in the interests of justice”.

Either way, it’s the community who suffers through having to rely on a patched bail system.

Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.

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