It is my attempt at introducing the way our courts work during bail hearings, because the man on the street’s judgement is not mirrored by those on the bench.
The man on the street knows that there are rhino poaching syndicate leaders among us. It is no secret that law enforcement officials are often involved in these crimes. He knows that poachers are often repeat offenders who were released on bail only to poach again.
Although the man on the street may project these facts onto accused in general and want their bail rights to be revoked as a result, our courts can not reason in this way. Doing so will make nonsense of the Constitutional rights of the accused.
Lowvelder‘s source rightly states that one could speculate about the links between corrupt law enforcers, syndicate members and poachers being released on bail. Yet without a police unit that succeeds in converting intelligence into evidence, our courts will never be able to make the judgment calls of the man on the street and deny alleged poachers bail in order to prevent them from returning to the scene of their crime.
The right to be released on bail must be effected if it is in the interest of justice and subject to reasonable conditions.
The Criminal Procedure Act has grouped criminal acts into schedules to which different rules apply when it comes to applying for bail. An accused who faces only schedule one charges, such as trespassing or theft, has the right to be granted bail without a formal bail application if the court is convinced that he will attend future proceedings, is not a danger to society, will not intimidate state witnesses or commit further crimes.
The accused’s personal circumstances are also considered. The accused must be able to provide the court with documentary proof of his legitimate presence in South Africa and his residential address must be confirmed as prerequisites.
In addition to trespassing into the Kruger National Park unlawfully, poachers are often charged with the illegal possession of a firearm and ammunition, poaching and theft. Those who crossed the South African border illegally are charged accordingly.
Schedule five offences include the illegal possession of an automatic or semi-automatic firearm. Where an accused has a previous conviction mirroring the charge he faces, rhino horn worth R500 000 has been stolen or syndicates or law enforcement officers were involved, the accused is charged with a schedule five crime. In these cases formal bail applications must be held.
Where an accused faces schedule five charges and was previously convicted of a schedule five crime, or where the accused was out on bail facing such a charge at the time of his arrest, he will be considered as a schedule six accused.
This means that the onus rests on the accused to prove that exceptional circumstances exist that will render his release on bail in the interests of justice.
In order to make this judgement call, a magistrate or judge must be presented with evidence by the state and the accused in opposition and in favour of bail. If concrete, admissible evidence is not given to corroborate an allegation, the court cannot accept the allegation as fact. Although it is generally known that many poachers who are released on bail end up fleeing to Mozambique to continue poaching, a general presumption cannot be made that this will always happen.
Our courts are bound to effect the Constitutional rights of all accused and consider them innocent until the state has proven otherwise. Our poaching prosecutors do their job with vigour. Advocates Ansie Venter and Isabet Erwee do not shy away from opposing bail when doing so is justified. Their conviction records prove that poachers do not have it easy in the Lowveld’s courts.
Nonetheless, we all know that there are poaching syndicates walking free. We know that some accused are bound to flee the country as soon as they receive bail. The key question is not whether it is known, but whether it can be proven. The court may not predict the future of one accused based on the history of others. More than that is needed.
The police are mandated with providing proof when bail should be opposed. When these officials fail to act on intelligence to produce evidence, the principles of our justice system cannot be compromised as a result.
