Minister Kubayi pushes bail reform to ease prison overcrowding

Justice and Constitutional Development Minister Mmamoloko Kubayi says bail reform and alternative sentencing are crucial to government plans to reduce overcrowding in South Africa’s prisons.

She made the comments in a written reply to a parliamentary question asking what steps were being taken to cut the number of people held in prison while awaiting trial, especially for minor offences.

The minister said her department has asked the South African Law Reform Commission to review bail laws in the Criminal Procedure Act.

Kubayi said long trial delays, postponed bail hearings and unaffordable bail costs are key reasons for overcrowding.

Dr Suhayfa Bhamjee,is a Senior Lecturer in Criminal Law at the University of KwaZulu-Natal.

She says when it comes to reform it is important to have an understanding of what the department wants to move towards.

Adding that any reforms must be made in the context of the current infrastructure and existing legislation.

"I think what we'll find is, the proposals might just be the silver bullet for the short term but not for the long-term systemic problems."

Bhamjee said while waiting trial prisoners do contribute to prison overcrowding, that isn't the only reason behind population numbers in prisons.

"There are a lot of gaps. People do also get lost in the prison system. There are people in prison who have completed their sentences...and are still in prison because the paperwork hasn't been done."

Figures from the Judicial Inspectorate for Correctional Centres show that thousands of detainees are unable to pay bail of less than R1 000.

Bhamjee said there is a provision in the Criminal Procedures Act that caters for this situation.

"Where it appears that the accused person is without means, there needs to be a financial inquiry."

The court must then come up with an appropriate amount based on the accused's own financial circumstances, she explained.

If it turns out that the accused person can't afford an amount of bail two things can happen.

"One, they can make an argument that the bail amount be reduced, or second, argue that no bail money be paid and they get released on a warning with conditions that go along with that."

Draft changes to the legislation are expected by March 2026.

To listen to Dr Suhayfa Bhamjee in conversation with Africa Melane, click audio below: