Tag Archive: Bail

Will it be bail or gaol for convicted killer Jason Rodhe?

Why bail is not always granted

In November 2018, Jason Rohde was convicted of killing his wife Susan and defeating or obstructing the course of justice by covering up her murder to make it look like a suicide. He is currently serving a 20-year sentence.

Upholding the rule of law. When not to release someone on bail.

Rohde has now asked the courts to grant bail so he can manage his business interests pending the outcome of his application to have his conviction and sentence overturned in the Supreme Court of Appeal (SCA). But the Western Cape High Court has denied bail. Granting bail would “offend the rule of law and make a mockery of the criminal justice system,” Judge Gayaat Salie-Hlophe said at the hearing. The court did not believe that the facts presented by Rohde’s legal counsel were “sufficiently compelling to justify his release.”

Being presumed innocent is not enough

Section 321 of The Criminal Procedure Act and legal precedent guide the decision on whether or not to grant bail. An accused may be released on bail while awaiting trial to carry on with his life and earn an income if there is a possibility that he may be acquitted or given a suspended sentence or probation. In this scenario the accused is still presumed innocent.

In the case of Essop v the State, for example, the court ruled that the presumption of innocence no longer applies if someone who has already been convicted and sentenced for a crime later applies for bail pending the finalisation of his appeal against his sentence.

In Rohde’s case, he too had already been convicted of murder and no longer enjoys the presumption of innocence. So, although he has been granted leave to appeal in the SCA, this does not in any way invalidate the fact that he has been found guilty and does not entitle the applicant bail pending the hearing of the appeal. (See R v Mthembu 1961 (3) SA 468.)

Being presumed innocent is only one factor considered in determining whether to grant or deny bail.  In the Essop matter, bail was granted pending the appeal, subject to strict conditions and under very different circumstances: The accused had pleaded guilty, the court felt that the sentencing magistrate had handed down a sentence far too severe, the appeal court was likely to amend the sentence, and Essop was not regarded as a flight risk.

Does it serve the interests of justice?

The Court must also consider whether together all the facts constitute exceptional circumstances that would justify Rohde being released on bail (R v Milne & Erleigh (4) 1950 (4) SA 601 (W) at page 603 and S v Bruintjies 2003 (2) SACR 575 (SCA) para 6). In S v Scott-Crossley 2007 (2) SACR 470 (SCA) the court held that the likelihood of success alone is not sufficient. Additionally, Section 60(4) and (5) state that the interests of justice do not permit an accused being released on bail during trial and preceding conviction. On this basis, the court ruled that releasing Rohde would not serve the interests of justice and, in any event, he had already been convicted.

Under what circumstances is bail denied?

Numerous factors come into play in the court’s decision to deny bail:

  • The severity of the crime.
  • If the accused is a flight risk (Rhode has Australian and United Kingdom passports as well as an overseas bank account).
  • To protect the welfare of society if the accused is a repeat offender.
  • If there are signs of mental instability or violence and the defendant poses a threat to themselves or others.
  • If there is a possibility that the accused will try to influence or intimidate witnesses or destroy evidence.

Furthermore, South Africa has the worst levels of gender-based violence (GBV) in the world and the highest incidence of rape per capita. The latest crime statistics reveal that seven women and three children are killed in this country every single day.

The recent spate of gender-based violence in this country is alarming and the judiciary must be seen to be upholding the rights of women. This is further reason to deny bail for Rohde.

The bottom line

A decision to release Rohde on bail would undermine the rule of law and make a mockery of the criminal justice system. The reasons to keep him behind bars are far more compelling than any justification to grant bail to someone convicted of such a dreadful crime.

We’re here to help

Cape Town Attorneys, SD Law & Associates Inc., are criminal attorneys and bail lawyers.

We will ensure that your constitutional right to a fair trial is upheld and we always consider alternative dispute resolution/mediation instead of gaol time. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for any advice about criminal law.

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Restorative justice – the arguments

Reconciliation vs. retribution

Globally, conventional criminal justice systems, based on punishing people for their crimes through incarceration and instilling fear of imprisonment as a deterrent, seem to have limited success. Prisons are overcrowded and rehabilitation is largely failing. Instead, restorative justice methodology, with its focus on resolving crimes by holding offenders accountable for their actions, is gaining ground.

Restorative justice supporters claim that the promotion of healing, restitution and rehabilitation of offenders will prevent future offences. This is because revenge does not help victims make sense of or restore their losses. It doesn’t answer questions or provide closure. Restorative justice falls within the ambit of alternative dispute resolution (ADR) and is a process of mediated dialogues. The term was first coined by Albert Eglash, a psychologist working with prisoners in the 1960s.

Alternative Dispute Resolution is rooted in South African customary law

Restorative justice and ADR have always been an integral part of customary law in South Africa. The Truth and Reconciliation Commission (TRC) is a good example of restorative justice. The TRC was established to deal with apartheid crimes in a participative and reconciliatory manner to promote healing of families, communities and the country. The Commission for Conciliation, Mediation and Arbitration (CCMA), which tackles labour disputes, is another example.

ADR and restorative justice – is there a difference?

Although negotiation, mediation and arbitration are components of both ADR and restorative justice, there is an important distinction. ADR involves conflict resolution and compromise assessment with the help of an impartial mediator. In ADR the parties agree on the terms of the settlement themselves. By contrast, restorative justice sets out to address the harm done once an offender has admitted to a crime and is willing to take responsibility for it. It does not aim to resolve a dispute.

In each case both parties are directly involved and are engaged in decision making, compared with conventional criminal processes, which regard the victim and offender as passive opponents, with key decisions taken by judges and lawyers.

Young offenders (under 18) may be offered diversion rather than restorative justice.

Advantages and application of restorative justice

Restorative justice functions within the framework of the criminal justice system. It is often seen as a way to deal with petty or moderate crimes, but can be used in criminal cases, taking into account the severity of the offence.

ADR mechanisms have become increasingly popular in South Africa: ADR is cheaper, quicker, more efficient and less stressful than going to court. It is informal and voluntary and can happen at any stage before or during civil proceedings as long as judgement has not yet been passed. The process also gives victims and communities a voice and can therefore be a more empowering experience.

Let the punishment fit the crime

The State vs Shilubane, 2005 was a significant victory for the principles of restorative justice. The accused, a 35-year-old first-time offender, stole and cooked seven fowls worth R216.16. He pleaded guilty and despite showing “genuine remorse” was sentenced to nine months in prison. On review, the sentence was deemed “disturbingly inappropriate”with Judge Bosielo stating that the “punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy.”

Although it requires a significant mind shift on the part of the legal fraternity, victims and offenders, the positive outcomes of restorative justice are heartening, and the process has done much to build relationships in South Africa.

A key argument in favour of restorative justice is that participating offenders are less likely to commit further offences, compared with those who are subject to conventional justice interventions (see “Restorative Justice: The Evidence”, by Lawrence Sherman and Heather Strang).

The solution to prison overcrowding?

Retributive justice and harsh sentences are failing to stem the ever-growing crime rate in South Africa. Restorative justice, with its emphasis on reconciliation over retribution, has much to recommend it, beyond reducing the seemingly insurmountable backlog in the South African courts. This is not to suggest that serious crimes should go unpunished or untried. Clearly, the merits of ADR/restorative justice must be carefully considered on a case‑by‑case basis, but it may be a viable alternative to a custodial sentence for less serious crimes or where the offender does not pose a danger to society.

The punishment should still fit the crime.

We can help

Cape Town Bail Attorneys, SD Law & Associates Inc. is a Cape Town law firm of Cape Town Bail Attorneys. We’ll fight for you and protect your rights. If you need advice on alternative dispute resolution or independent mediation services or help with any aspect of criminal law or bail, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

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