Penalised for poverty: The unfair assessment of ‘flight risk’ in bail hearings

  • Jameelah Omar University of Cape Town
Keywords: bail, flight risk, criminal procedure


The purpose of bail must be evaluated in light of the purpose of pre-trial detention. Bail is not intended as a punitive measure. The Criminal Procedure Act 51 of 1977 contains various factors that guide a court in determining whether it is in the interests of justice to grant bail. Unfortunately, by giving undue weight to certain factors and ignoring others, courts have been known to deny bail on the basis that a lack of sufficient assets owned by accused persons means that they are likely to be flight risks. This is arguably unfair discrimination in terms of relevant Constitutional rights.

Author Biography

Jameelah Omar, University of Cape Town
LLB, LLM (Criminal Justice), UCT; Lecturer, Public Law, University of Cape Town


Primary sources
Case Law
S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC).

S v Branco 2002 (1) SACR 531 (W) at 533.

S v Petersen 2008 (2) SACR 355 (C) at 55.

S v Letaoana 1997 (11) BCLR 1581 (W) at 1588.

S v Masoanganye and Another 2012 (1) SACR 292 (SCA).

S v Kok 2003 (2) SACR 5 (SCA)

S v Diale and Another 2013 (2) SACR 85 (GNP).

S v Mazibuko and Another 2010 (1) SACR 433 (KZP).

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).

August and another v Electoral Commission and others [1999] JOL 4701 (CC).

Constitution of the Republic of South Africa, 1996.

Criminal Procedure Act 51 of 1977.

Employment Equity Act 55 of 1998.

Secondary sources
J Chaskalson and Y De Jong, Bail in C Gould, Criminal (In)Justice, Pretoria: Institute for Security Studies, 2009.

A Kruger, Bail application of accused in court, in Hiemestra’s Criminal Procedure, Durban: LexisNexis, 2008.

C Ballard A statute of liberty? The right to bail and a case for legislative reform (2012) 25 SACJ 24 at 35.

V Karth Between a rock and a hard place – Bail decisions in three South African courts, Open Society Foundation for South Africa, 2008.

Angelique Serrao, Show Proof of Address and you get Bail, IOL News 24 July 2013, (accessed 26 May 2016).
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