Esther Steyn critically examines the restrictive 1997 law on bail and the Constitutional Court's failure to uphold the internationally recognised right of a suspect to liberty while awaiting trial. The perception that bail is granted too easily, that this contributes significantly to crime and that restrictive bail laws are therefore necessary, however, does not stand up to scrutiny.
A major reason for the prevalence of crime is the poor functioning of the criminal justice system. The author concludes that the Constitutional Court, which should act as the primary protector of liberty as enshrined in the Constitution, has marred its progressive record by upholding draconian legislation. While the right to bail is not absolute and accused persons should be incarcerated where the state can provide strong reasons for this, the effect of the judgment could be to allow pre-trial detention whenever it is alleged that an accused has committed a serious offence.