Bags of bail money piling up in state coffers
About a third of people do not collect their cash once their cases are finalised
A Johannesburg businessman came dangerously close to forfeiting his bail of R1.1-million this month. When Jason Rohde failed to appear in court he was arrested at the clinic where he was receiving psychiatric treatment.
The bail system is a multimillion-rand operation which is often characterised by bondsmen lurking in the corridors of justice and misinformed accused who lose their money unnecessarily.
Bail of over R274.4-million was received in 2016/2017 according to the Department of Justice and Constitutional Development. About R40-million was forfeited to the state, and on March 31 2017 uncollected bail in 14,328 cases totalled R8.8-million.
Lawyers say that while the system has its good points, certain aspects should be reviewed as they were often not applied correctly – including the question of whether someone can afford bail.
By law an accused may apply for bail pending the finalisation of a trial. The individual has to abide by bail conditions and has to appear in court. Upon completion of the trial, irrespective of the outcome, the money is returned. If conditions are not met the money is forfeited.Attorney Lee Pillay from LegalWise said many people were forced to get financial assistance from “informal bail bondsmen”. And he estimated that up to 30% of people did not collect their bail once their cases were finalised.
“A lot of it is because of ignorance and not understanding how the collection system works, many lose their receipts, and some just forget or don’t think it is worth the effort [to collect],” said Pillay.
He believes the bail system “works well” and that it was designed to be fair and affordable. But many poor people end up in custody because they can’t afford bail.
David*, an informal bail bondsman in Johannesburg, offers loans for bail and charges interest of up to 30%. He keeps the bail receipt, takes the person’s identity document and in some instances their South African Social Security Agency card.
“If they don’t pay, I keep their IDs plus the receipt and collect my money,” said the well-dressed man, who claimed to earn between R10,000 and R20,000 a month.William Booth, chairman of the Law Society of South Africa’s criminal law committee, believes there is “room to improve” the system. He said lower courts could be more innovative about bail. Instead of having to pay, those arrested for petty crimes could be released on a warning. If the crime was more serious, said Booth, house arrest would be effective.
“Bail is not a punishment; it is there to ensure that the person attends court. In our law all accused are innocent until proven guilty,” said Booth, who believes prison overcrowding is largely a consequence of unaffordable bail being set.
Singabakho Nxumalo, from the Department of Correctional Services, said last September there were more than 5,800 people eligible for bail in prison – and only some of them could not afford it. For those who could not afford bail of under R1,000, the head of the facility could approach the court to have them released under the department’s supervision.Steve Mahlangu, deputy director for media research and liaison at the Department of Justice, said bail that was not collected 12 months after the conclusion of a case was deposited in a central account.
“As per new approval legislation coming into effect on April 1 2018, these moneys are then paid over to the National Revenue Fund after 10 years,” said Mahlangu.
On Wednesday at the conclusion of a bail inquiry, Rohde’s bail was reinstated by Judge Gayaat Salie-Hlophe, who is presiding over his murder trial in the High Court in Cape Town. He has pleaded not guilty to killing his wife, Susan, and the bail inquiry was held after he failed to attend the resumption of his trial after a break of two months.
His doctor told Salie-Hlophe on Wednesday he is suffering from "severe major depression episodes”.
* Not his real name