The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The circumstances under which a court may grant bail to an accused person charged with a heinous crime are widely misunderstood in South Africa. Although the rules around the granting of bail are relative strict if compared to many other constitutional democracies, a court is not supposed to withhold bail merely in order to punish the accused or to demonstrate disapproval of alleged crime committed by the bail applicant. To do so would amount to a form of detention without trial, which was widely used during in the apartheid era against political opponents of the National Party regime. I fear that many South Africans considering the merits of granting bail to murder accused Oscar Pistorius will lose sight of this important fact.
Section 35 of the Constitution states that every person arrested for allegedly committing a crime has the right to be brought to court (usually within 48 hours after arrest) and “to be released from detention if the interests of justice permit”. As the Constitutional Court explained in the 1999 case of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, the question of whether it would be in the interest of justice to grant bail will focus “primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with the proper investigation and prosecution of the case”. The Court then continued:
The broad policy considerations contemplated by the “interests of justice” test … can legitimately include the risk that the detainee will endanger a particular individual or the public at large. Less obviously, but nonetheless constitutionally acceptably, a risk that the detainee will commit a fairly serious offence can be taken into account. The important proviso throughout is that there has to be a likelihood, i.e. a probability, that such risk will materialise. A possibility or suspicion will not suffice. At the same time, a finding that there is indeed such a likelihood is no more than a factor, to be weighed with all others, in deciding what the interests of justice are.
In a bail application the enquiry is not primarily concerned with the question of the guilt of the accused. The focus at the bail stage is to decide whether the interest of justice permits the release of the accused pending trial. Bail will usually be denied to protect the investigation and prosecution of the case and to protect society against the possible future life threatening criminal acts of an accused.
The bail provisions contained in section 60 of the Criminal Procedure Act must be interpreted and applied with reference to these human rights based policy considerations. It is not clear that our courts always make decisions on bail within the framework of these human rights centred policy considerations — especially in cases where an accused is poor or does not have legal representation.
Section 60 of the Criminal Procedure Act states that a court can normally refuse bail “in the interest of justice” only where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person; will evade his or her trial; will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or if, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.
But section 60(11) of the Criminal Procedure Act provides for an exception to this general rule. It states that where an accused is charged with planned or premeditated murder; with the killing of a police officer; with rape related offences; or with robbery with agravating circumstances (so called schedule 6 offences) the court must deny bail unless the accused can prove to the court that “exceptional circumstances exist which in the interests of justice permit his or her release”. In such cases the National Director of Public Prosecutions (NDPP) can issue a written confirmation that he or she intends charging the accused with one of these schedule 6 offences, which the court considering bail will take as prima facie proof of the charge to be brought against the accused by the Prosecuting Authority.
The bail hearing of Oscar Pistorius is based on this section, but because the NDPP did not issued a note confirming the schedule 6 charge, the court must first decide whether there is a significant likelihood that Pistorius will indeed be charged with “premeditated murder”. This concept of “premeditated murder” is not a legal category found in our general criminal law principles, as no distinction is made at the trial stage of the proceedings between premeditated murder and other forms of murder. The concept is relevant for considering bail and, again, after conviction, can play a role in determining the sentence of the convicted murderer.
Premeditated or planned murder was described as follows by the Cape High Court in the case of S v Raath:
Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and one which had been conceived and planned over months or even years before its execution… Only an examination of all the circumstances surrounding any particular murder, including not least the accused’s state of mind, will allow one to arrive at the conclusion as to whether a particular murder is ‘planned or premeditated’. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance…
This means that a court is not supposed to apply section 60(11) to a bail hearing where in the absence of a certificate from the NDPP where an accused person is suspected of killing someone else “on the spur of the moment”. Something more is required.
When considering the constitutionality of this section of the Act in the Dlamini case, the Constitutional Court pointed out that the section makes it more difficult but not impossible for a court to grant bail to an accused who will be charged with premeditated murder. The section places “a formal onus” on the accused. This means the accused must actually produce evidence of “exceptional circumstances” and cannot merely rely on the alleged weaknesses in the evidence made by the state during the bail hearing.
However, the Constitutional Court, in finding that this provision was not unconstitutional, watered down its application by watering down the meaning of “exceptional circumstances”. The onus still rests on the accused. But the Court said that the subsection does not require the accused to provide evidence of circumstances “above and beyond” those factors listed above: factors such as whether the accused will threaten the safety of the public; will pose a flight risk or will pose a risk to the investigation by, say, interfering with witnesses.
As the Constitutional Court explained in the Dlamini case, an accused charged with a schedule 6 offence could establish that “exceptional circumstances” exist to grant bail by showing that “there are exceptional circumstances relating to the his or her emotional condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case”. For example, continued the Court:
an otherwise dependable man charged with consensual sexual intercourse with a fifteen year old girl, and who has a minor previous conviction dating back many years, would technically fall within the ambit of sub-s (11)(a). Yet a prudent judicial officer could find those circumstances sufficiently exceptional to warrant bail provided there were no other factors adverse to the grant.
Applying these factors to a question of whether bail should be granted to an accused charged with premeditated murder, the question is not whether – based on the arguments presented by the state and the counter arguments presented by the legal representative of the accused – a court might have doubt about the innocence of the accused. The probability that Pistorius is either guilty or innocent is therefore not of primary importance in the considering whether he should be granted bail.
What is of primary importance is whether his legal representative had provided evidence of exceptional circumstances that would demonstrate to the court that Pistorius had not been involved in similar crimes in the past, that he does not pose a flight risk or a threat to other members of the public and that he will not interfere with the investigation. If they had shown this, Pistorius should be granted bail.
As is often the case when decisions about bail are made, the public (and it must be said, sometimes also the presiding officer) conflate their abhorrence of the alleged criminal act or their suspicions about whether the accused might eventually be found guilty of the crime, on the one hand, with the question of whether exceptional circumstances exist to grant bail, on the other. They then insist that bail should have been denied. This is often in conflict with the human rights based interpretation of the relevant section of the Criminal Procedure Act that was provided by the Constitutional Court.
I know this is not a popular point to make. I am also aware that some people might wrongly believe that in pointing this out, I am demonstrating an insufficiently abhorrence of the crime that Pistorius is being charged with. But I would invoke the words of Justice Arthur Chaskalson in S v Makwanyane to answer this conceptually muddled charge:
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The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.