Taxpayers to fund bail for minor offences to ease prison overcrowding

Taxpayers’ money is to be used to pay bail for those accused of minor offences – all to help ease pressure on the overcrowded prisons system, according to a plan by the Judicial Inspectorate for correctional services.

The inspectorate, which oversees prison conditions to ensure compliance with the law, said 2 613 detainees are unable to pay bail amounts under R1 000, with many more struggling to afford slightly higher amounts.

Extreme overcrowding

The initiative was prompted by extreme overcrowding, retired judge Edwin Cameron, head of the inspectorate, said.

“One of the most severe violations of human dignity in prisons is overcrowding. This morning, at Westville Medium B, we were informed that a facility designed for 1 500 inmates currently holds around 4 000 people – an overcrowding rate of 157%.

“That is not just undignified; it is deplorable. It is deeply distressing.

“However, we do not place the blame on the department of correctional services or its personnel. The responsibility lies with parliament, the Saps, and Crime Intelligence for failing to manage crime effectively,” he said.

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How it will work

The inspectorate highlighted the scale of the crisis: in Gauteng alone, 742 remand detainees cannot afford bail under R1 000, while in the Western Cape, the number stands at 798.

The bail fund will operate independently of government institutions such as the National Prosecuting Authority (NPA), the magistrate’s and high courts, the department, and the inspectorate itself.

According to Cameron, the fund will primarily assist detainees accused of petty offences where bail has been set under R1 000.

However, it will likely exclude those facing charges related to gender-based violence or intimate-partner assault.

“It will be an independent entity that does not require government or institutional approval. At this stage, nothing has been formally established – there is no competition, no charter and no founding memorandum yet.

“However, I assume the pilot phase will begin cautiously, focusing on individuals with bail under R1 000. It will be implemented in one or two magistrate’s courts and prisons within a specific municipality.”

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While the fund is not a long-term solution to the injustices of cash bail or overcrowding, it is a necessary intervention given the current crisis, Cameron said.

“The SA Law Reform Commission is exploring legislative amendments, which we hope will address both cash bail and the minimum sentencing laws that contribute to overcrowding.

“In our last meeting, the deputy national director of public prosecutions at the NPA stressed prosecutors must ensure that bail is not set at unaffordable levels.

“We will collaborate with the NPA, magistrates, police and the department to address this problem at its root.”

Lukas Muntingh, director of the Dullah Omar Institute at the University of the Western Cape, said the initiative could be useful, adding broader systemic reforms are needed.

‘A potential solution’

“This is a potential solution. We need to test its effectiveness and evaluate the costs. While it may benefit some individuals, the overall impact will be limited.

“That doesn’t mean we shouldn’t try it, but we must also tackle larger systemic issues. We should assess its viability before determining the next steps,” Muntingh said.

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“The growing number of remand detainees is alarming, driven by the near-breakdown of the justice system. Cases are frequently postponed before a bail application is even heard. Systemic issues within the police, prosecution services and the judiciary are worsening court delays.”

“When a court grants bail of R1 000 or less, it has already determined the accused is likely to return for trial. The amount is set at what the court considers affordable,” Muntingh said.

“There is no single solution to this issue. It’s important to remember bail is meant to ensure an accused appears in court. It is not intended as a punishment.”