Please read the abstract in the section 00front of this document Please note that the used copy of this thesis does not contain pages xx-xxi of the list of abbreviations / Thesis (LLD)--University of Pretoria, 2006. / Jurisprudence / LLD / Unrestricted

The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.

The primacy objective of this study is to determine if the acceptance of electronic payments will improve the service delivery at SAPS King William's Town? The secondary objectives are: * To determine if the SAPS are complying with sections 2 (d), (g) and (k) of the ECT Act * To make recommendations that can be used by management of the SAPS with regards to the acceptance of electronic payments as an e-government principle. Will the acceptance of electronic payments improve the service delivery of the SAPS King William's Town? The research design for the purpose of this mini dissertation will be that on an exploratory study. Data will be collected by means of questionnaires. The purpose of the mentioned technique is firstly to collect information from the SAPS to determine if the electronic payment of fines and bail would improve the efficiency and effectiveness of the SAPS at King William's Town. The population sample for this research project will be the employees of the South African Police Service in the Eastern Cape, members of the community and the clerks of the court Data was analyzed using qualitative methods. / Economics / M. Tech. (Business Administration)

Text in Afrikaans / Wanneer die konstitusionele invloed op borgstelling in die bree bespreek word, moet die bepalings van die Grondwet 200 van 1993 met inbegrip van die Handves van Menseregte en die onderliggende waardes, beginsels en doelstellings daartoe binne die Suid-Afrikaanse konteks inaggeneem word. Die algemene transformasie van die Suid-Afrikaanse gemeenskap in 'n verteenwoordigende demokrasie, veelvolkigheid van die Suid-Afrikaanse gemeenskap, eskalerende misdaadsyfer, wantroue van die gemeenskap in die regstelsel en die beklemtoning van fundamentele regte is aspekte wat figureer binne die Suid-Afrikaanse borgtogreg. Die tradisionele benadering dat die bewyslas op die beskuldigde rus tydens borgtogverrigtinge is binne die moderne borgtogreg en in die lig van die Grondwet 200 van 1993 asook die Tweede Strafproseswysigingswet 75 van 1995 onvanpas. As algemene reel behoort die bewyslas by 'n borgaansoek op die staat te rus op oorwig van waarskynlikhede. In sekere spesifiek omskrewe gevalle soos vervat inartikel60(11) van die Tweede Strafproseswysigingswet rus die bewyslas op die beskuldigde. Hierdie beperking is regverdigbaar in tenne van artike133 van die Grondwet 200 van 1993. Daar bestaan verder nie voldoende rede om nie gebruik te maak van die bewyslasbegrip as gevestigde prosessuele maatreel tydens borgverrigtinge nie. In die moderne Suid-Afrikaanse borgtogreg moet 'n balans gehandhaaf word tussen die belange van die gemeenskap en die fundamentele regte van die individu. Die howe moet in elke spesifieke geval· inhoud aan hierdie beginsel verleen. / When the effect of the Constitution of the Republic of South Africa 200 of 1993 on bail is considered, the transformation of the South African community, multi-racial society, high crimerate, disillusionment of the community with regard to the courtsystem and importance of fundamental rights must be regarded. The traditional approach that the onus is upon the accused (in his capacity as applicant) to prove on a balance of probability that the court should exercise its discretion in favour of granting bail and, in discharging this burden, he must show that the interests of justice will not be prejudiced, is in terms ofthe Constitution 200 of 1993 and the Criminal Procedure Second Amendment Act 75 of 1995 unacceptable. It is submitted that the onus should be on the State to place grounds before the Court why there should be an exercise of discretion in favour of the State for further detention of the individual. In terms of certain spesific crimes as described in article 60(11) of the Criminal Procedure Second Amendment Act theis placed on the accused. This exception is acceptable as it prescribes to the requirements in article 33 of the Constitution 200 of 1993. It is submitted that there is no reason why onus as excepted evidentiary rule should not be used in bail applications. A balance between the interest of the community and fundamental rights of the individual must be kept in modern law regarding bail. It is in the hands of the courts to substantiate this balance. / Criminal & Procedural Law / LL.M. (Criminal & Procedural Law)

The primacy objective of this study is to determine if the acceptance of electronic payments will improve the service delivery at SAPS King William's Town? The secondary objectives are: * To determine if the SAPS are complying with sections 2 (d), (g) and (k) of the ECT Act * To make recommendations that can be used by management of the SAPS with regards to the acceptance of electronic payments as an e-government principle. Will the acceptance of electronic payments improve the service delivery of the SAPS King William's Town? The research design for the purpose of this mini dissertation will be that on an exploratory study. Data will be collected by means of questionnaires. The purpose of the mentioned technique is firstly to collect information from the SAPS to determine if the electronic payment of fines and bail would improve the efficiency and effectiveness of the SAPS at King William's Town. The population sample for this research project will be the employees of the South African Police Service in the Eastern Cape, members of the community and the clerks of the court Data was analyzed using qualitative methods. / Economics / M. Tech. (Business Administration)

Text in Afrikaans / Wanneer die konstitusionele invloed op borgstelling in die bree bespreek word, moet die bepalings van die Grondwet 200 van 1993 met inbegrip van die Handves van Menseregte en die onderliggende waardes, beginsels en doelstellings daartoe binne die Suid-Afrikaanse konteks inaggeneem word. Die algemene transformasie van die Suid-Afrikaanse gemeenskap in 'n verteenwoordigende demokrasie, veelvolkigheid van die Suid-Afrikaanse gemeenskap, eskalerende misdaadsyfer, wantroue van die gemeenskap in die regstelsel en die beklemtoning van fundamentele regte is aspekte wat figureer binne die Suid-Afrikaanse borgtogreg. Die tradisionele benadering dat die bewyslas op die beskuldigde rus tydens borgtogverrigtinge is binne die moderne borgtogreg en in die lig van die Grondwet 200 van 1993 asook die Tweede Strafproseswysigingswet 75 van 1995 onvanpas. As algemene reel behoort die bewyslas by 'n borgaansoek op die staat te rus op oorwig van waarskynlikhede. In sekere spesifiek omskrewe gevalle soos vervat inartikel60(11) van die Tweede Strafproseswysigingswet rus die bewyslas op die beskuldigde. Hierdie beperking is regverdigbaar in tenne van artike133 van die Grondwet 200 van 1993. Daar bestaan verder nie voldoende rede om nie gebruik te maak van die bewyslasbegrip as gevestigde prosessuele maatreel tydens borgverrigtinge nie. In die moderne Suid-Afrikaanse borgtogreg moet 'n balans gehandhaaf word tussen die belange van die gemeenskap en die fundamentele regte van die individu. Die howe moet in elke spesifieke geval· inhoud aan hierdie beginsel verleen. / When the effect of the Constitution of the Republic of South Africa 200 of 1993 on bail is considered, the transformation of the South African community, multi-racial society, high crimerate, disillusionment of the community with regard to the courtsystem and importance of fundamental rights must be regarded. The traditional approach that the onus is upon the accused (in his capacity as applicant) to prove on a balance of probability that the court should exercise its discretion in favour of granting bail and, in discharging this burden, he must show that the interests of justice will not be prejudiced, is in terms ofthe Constitution 200 of 1993 and the Criminal Procedure Second Amendment Act 75 of 1995 unacceptable. It is submitted that the onus should be on the State to place grounds before the Court why there should be an exercise of discretion in favour of the State for further detention of the individual. In terms of certain spesific crimes as described in article 60(11) of the Criminal Procedure Second Amendment Act theis placed on the accused. This exception is acceptable as it prescribes to the requirements in article 33 of the Constitution 200 of 1993. It is submitted that there is no reason why onus as excepted evidentiary rule should not be used in bail applications. A balance between the interest of the community and fundamental rights of the individual must be kept in modern law regarding bail. It is in the hands of the courts to substantiate this balance. / Criminal and Procedural Law / LL.M. (Criminal & Procedural Law)

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees. / Criminal & Procedural Law / LLM

Text in English / Every victim wants to see the perpetrator or offender of serious crimes convicted for their criminal actions. Each victim in a case is supported by witnesses and the community in wanting accused persons to be locked away behind bars. Having the accused persons locked away in prison is an achievement of every role player involved in the process of putting that accused where he/she belongs. The ultimate goal of investigation is to see successful bail opposing to ensure the safety of witnesses. There are accused who are released from custody by the court despite many attempts made by an investigator to keep that criminal in custody until trial. Victims and witnesses are struggling to get their offenders punished for the crimes they committed. It is the wish of every investigator of crime to satisfy every complainant in cases but it does not always happen, not because of any lack of skills, but because of many factors which come along with the successful prosecution in a case. Once the accused is released on bail, the chances and hopes of putting him/her back in prison are equal to the chances of getting him/her back in the community for good. This difficulty is caused by the fact that, once the accused is out on bail he/she might evade trial or the docket will be in and out of court for further evidence until the court declines to prosecute. / Criminal and Procedural Law / M.A. (Criminal Justice)

The Constitution of the Republic of South Africa guarantees every person a fair trial; the right to a fair trial right trial must begin and conclude within a reasonable time and without undue delay. Internationally the same guarantees and protections are available to unconvicted suspects. However, the South African criminal justice system lacks behind internationally and falls short of promoting these guarantees. Investigation was done on delays in commencing and finalising trials in light of constitutional provisions, the consequence and the impact of the delay with discussion on prison conditions and overcrowding with reference to the Constitutiton, legislation and case law. Delayed trial, prison overcrowding and poor prison conditions are still an issue in South Africa and there needs to be positive change to enforce and practice prescribed directives. South Africa‟s justice system through its servants, need to do more to gain a higher status of having a constitutionally democratic country that fully promotes‟ rights of detainees. / Criminal and Procedural Law / LLM