SA's bail laws are not the problem but rather the trick is to ensure police present strong evidence with strong witnesses to prevent would-be perpetrators from getting bail.

Criminal law expert William Booth said in its current form the law was sufficient to ensure those who did not deserve bail were not granted it. However, he said at times the cases presented by police, the evidence and witnesses in court were not strong enough.

“Firstly, one must look at what laws govern bail. In terms of the criminal procedure act, bail is governed by certain sections and that depends on the type of cases a person is arrested for.”

Booth said if someone was arrested for a serious offence such as premeditated murder, rape and kidnapping, those crimes fell under schedule 6, which made it difficult for someone to obtain bail.

He added that the onus was also on the alleged perpetrator to convince a judge to grant them bail. He said the same applied for schedule 5 offences, which included murder, dealing in drugs and fraud amounting to R500,000 or more.

“It is difficult to get bail for these. If you’re already released on bail before it’s very difficult to get bail for a second case. There is a presumption of innocence till proven guilty if not convicted.”

Booth said the problem was in practice and not the law. “In many instances, cases are not properly investigated by police and because of that courts will release suspects because the investigation is poor and courts can’t link [suspects] to previous cases.

“In courts you’ve got the law and criminal procedure act but not the actual dealing of cases by police. Police don’t present strong enough cases. There are many cases of people [being] released on bail because cases aren’t investigated properly. The law has sufficient guarantees, if it's applied correctly in practice in court to prevent people from not getting bail who shouldn’t,” Booth said.

University of Pretoria senior lecturer in criminology Karen Booyens said new bail and sentencing laws were passed by the National Assembly and came into effect in April 1998. 

She said as a result the criteria for the granting of bail have become stricter and it may be extremely difficult for a person accused of a serious crime to be granted bail.

“Also, a person may be granted bail if it is determined that he/she is not a flight risk, he/she undertakes to attend court hearings while out on bail, will not intimidate witnesses and is not a danger to the community/society. 

“The weakness is that applying and granting of bail depends on the discretion of the presiding officer and if an accused person can show that he/she is not a flight risk, not a danger to community members, he/she may be granted bail.”

Tshwaranang Legal Advocacy Centre (TLAC) executive director Welekazi Stofile said many organisations were working to review SA's bail processes.

“What is happening in this country is very frustrating. The numbers of women killed by their lovers continues to rise despite all efforts made to address this challenge

“We understand that bail is a right, but we must propose that those arrested for cases of femicide and gender-based violence must not be granted bail. Many cases have shown that those granted bail on such cases are likely to go out and cause more harm to their victims,” said Stofile.