Bail Procedure In GBV Cases in South Africa | Legal Articles


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Bail Procedure In GBV Cases in South Africa

The Criminal and Related Matters Amendment Act 12 of 2021 was signed into law in January 2022 by the President of the Republic of South Africa, and among its foremost provisions was the introduction of stricter bail conditions for offences involving gender-based violence. The move was in response to several calls from some sections of society where perpetrators of gender-based violence are released on bail through lawful but not-so-strict conditions, then go on to commit further GBV related offences. How far these stricter bail conditions will go, remains to be seen.

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Gender Based Violence Challenges in South Africa

Gender based violence attacks mostly happen in the so called ‘behind closed door’ spaces, which makes it very difficult to prevent and control them. Consequently, when law enforcement personnel get involved, they will now be dealing with the after-effects. Unlike an assault that occurs in a public or open space, passers-by may intervene to stop it before it manifests, whereas gender-based violence mostly happens behind closed doors where the victim has no one to turn to, to ward off the abuse/attack at that particular time. By the time the neighbours respond to the screams, the attack is usually complete. This is a real challenge for victims of gender based violence as they are mostly vulnerable when the attack happens.

The other challenge is about the perpetrator being released on bail and because he/she is frustrated that he/she has been exposed, metes out more attacks on the victim in retaliation. This is what the Criminal and Related Matters Amendment Act (amendment act) seeks to curb and minimise.

Solutions to Gender-Based Violence

The Amendment Act amended Section 59 of the Criminal Procedure Act 51 of 1977 (CPA) by setting stricter bail conditions for offenses related to gender-based violence. The perpetrator may not be released on bail before making their first appearance in a court of law. In simple terms, this effectively means accused persons in offenses related to gender-based violence will no longer be eligible for police and prosecutor’s bail and may only make a formal bail application in court. The court will inquire into whether there is any danger to the victim if the perpetrator is released on bail, whether any protection order was violated, and other pertinent considerations.

The effect of this provision is far reaching, the incidence of where the offender is released on bail a few hours after arrest and then metes out more attacks on the victim will be curbed because first appearances at court must be within 48 hours after arrest. In instances where the victim feels in grave danger, he/she has ample time to arrange alternative accommodation within that time frame before the offender is released on bail (It is also not a given that the offender will be released on bail after making a formal application in court). This affords a somewhat breathing space for the victim to escape.

Ultimately, it remains to be seen how far these legislative interventions will go but they are definitely in the right direction.  

We urge victims of GBV and those who are aware that someone is a victim of abuse, to report these as it is a responsibility imposed on all members of society to do our part in ending gender-based violence.

Van Deventer & Van Deventer Incorporated - Family Law Attorneys South Africa

We assist victims of gender-based violence and we urge all to come forward and report such cases. Contact us to find out more about our expert legal assistance in family law.

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