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

Abstract

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 of 1977 contains various elements that guide a court in determining whether it is in the interests of justice to grant bail. Unfortunately, courts have been known to deny bail by giving undue weight to some factors and ignoring others, including the denial of bail on the basis that a lack of sufficient assets owned by accused persons means that they are likely to be flight risks. Additionally, the denial of bail on the basis of a lack of a verifiable fixed residential address has also affected the assessment of potential to abscond trial. Both of these issues: ownership of assets and a fixed residential address, while distinct factors, stem from a similar indicator - that of the economic standing of the accused. This is arguably discriminatory in terms of relevant constitutional rights.