Coming soon: fund to help people pay bail

New pilot project will help detainees who cannot afford bail. Illustration: Lisa Nelson.

• About 2,600 people have been granted bail but cannot afford it.
• A fund to help those who cannot afford bail will be trialled in a pilot project led by the Judicial Inspectorate for Correctional Services and the Bertha Centre.
• Research by Advocates for Human Rights at Harvard Law School points to international examples of projects that help prisoners access justice.

More than 2,600 awaiting-trial detainees are stuck in overcrowded South African prisons because they cannot afford to pay bail of less than R1,000. Many more cannot afford low bail amounts of more than R1,000.

The Bail Fund working group, led by the Judicial Inspectorate for Correctional Services (JICS) and with the support of the Bertha Centre, will soon launch a small pilot project to help these detainees who have been granted bail but who cannot afford to pay it.

During a working group meeting on Thursday, JICS inspecting judge Edwin Cameron said the Bail Fund would address the “injustice of being detained simply because of poverty” and make an impact on overcrowding in prisons. Currently, there are about 742 people in prison who can’t afford bail in Gauteng and 798 in the Western Cape.

“We are a band-aid. We are not looking to make a systemic change,” said Cameron.

He added that they might face resistance to the Bail Fund. “We may be exposed to risk. But in our view the human cost and the gross injustice of unaffordable bail is too stark to ignore,” he said.

Cameron further explained that the Bail Fund will be extra-institutional — it will operate outside the structures of the National Prosecuting Authority, the courts, the Department of Correctional Services, and JICS.

The Fund will also be closely tailored and target low-risk offenders. Recipients would be those who committed petty offences with a bail amount of under R1,000.

Anton du Plessis, National Prosecuting Authority (NPA) Deputy National Director of Public Prosecutions, said during the meeting that the Bail Fund “is fully in line with NPA’s policy approach”.

“Where any bail amount is less than R1,000, it’s really incumbent on the prosecutor and our own policy to make sure that those people don’t get stuck and remain in prison because they can’t pay the bail,” said du Plessis.

“We are meant to be pushing harder on this. Clearly looking at the numbers that you put out, we’re not pushing hard enough to make sure every effort is made that people who can’t afford those low amounts of bail are not kept in incarceration,” he said.

Representing the Department of Correctional Services, chief deputy human resources commissioner Cynthia Ramulifho expressed support for the Bail Fund, particularly that it would address overcrowding in prisons.

She said the number of remandees (people in prison who are awaiting trial) in the Eastern Cape who do not have money to pay bail is also growing. She said the Bail Fund would benefit the state, as it would save the costs incurred by the department in paying for food, electricity, and medical services to those who are supposed to be outside of the facility.

Special remissions between 2019 and 2023 saw the sentenced prisoner population decrease, but the number of detainees awaiting trial or sentencing is on the rise. Graphic: Daniel Steyn

Bail Funds in other countries

Research aimed at assisting in establishing the South African Bail Fund, by a team of students from Harvard Law School’s Advocates for Human Rights, looked at bail funds worldwide.

“Cash bail in a starkly unequal society like South Africa creates an inherently unequal criminal justice system in which one’s freedom is determined by their socio-economic class,” the Harvard study reads.

“These individuals are said to be presumed innocent until proven guilty. Yet they are subjected to prison conditions and negative consequences with no immediate prospect of release or access to rehabilitation programs.”

The Malawi Bail Project is an “access to justice project” which assists those who have committed minor offences to apply for bail during their first court appearance. The project focuses on educating people on their right to bail and aims to increase the number of bail applications in courts.

The Malawi Bail Project explains on its website that due to a lack of legal aid lawyers in Malawi, many people are arrested and brought to court without legal representation and unaware of their right to bail. This means thousands of Malawians are detained in “severe[ly] overcrowded prisons”.

The Malawi Bail Project’s aim is then broader than “solely dealing with the monetary hurdle”, according to the study, but also “empowers remand detainees to know their rights and exercise them while also focusing on capacity-building of the criminal justice system”.

In the United States, the non-profit organisation The Bail Project provides bail funding to thousands of people who cannot afford it. The organisation also provides them with court support after release, including transport to court.

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