First published by GroundUp

Refilwe* is a single mother of two young children. She supports herself her family by doing piecemeal work as a domestic worker in Johannesburg.

Refilwe was charged with a crime under South African law in November 2018 and has been in prison awaiting trial for almost eight months. During this period, no trial date has been set and she has been refused bail on two occasions. The primary reason given is that Refilwe is a foreign national and is thus considered a “flight risk”.

Section 60 of the Criminal Procedure Act governs how bail should be applied to persons accused of committing a crime. It mandates judges and magistrates to perform an analysis of the risk associated with releasing an accused person on bail, including the risk that an accused person will not return to court to stand trial and the likelihood of the accused person committing a further offence.

But there is nothing in our law that says being a foreign national automatically makes someone a “flight risk”. In fact, our courts have found just the opposite. In S v Hudson and in S v Price, the courts held that foreign nationals do not bear an increased onus of proof in relation to bail applications than South African citizens. Unfortunately, that does not mean they are treated equally in our criminal justice system.

Refilwe’s case is a good example. Represented by the Centre for Applied Legal Studies, she has appeared in the Palm Ridge Magistrates Court for two bail applications. Despite two days’ worth of argument explaining how the law was on her side, Refilwe was denied bail.

Instead of making a proper Section 60 enquiry, the magistrate concentrated on the accused being a foreign national, questioned her immigration status in the country, and consequently found her to be a “flight risk”. He ignored her personal circumstances, including the rights of her two children to parental care, a verified address provided to the court where she would be staying upon her release on bail, the fact that she has no other matters pending against her and was willing to submit to any bail conditions that the court may wish to impose, and finally the fact that her right to healthcare is being violated by the inconsistent supply of chronic medication in prison.

It is indispensable for every magistrate to understand that the fact that an accused person is a foreign national or even that he or she is an illegal immigrant does not justify a refusal of bail. Superior courts have granted bail to foreign nationals before, and their nationality alone cannot be a basis for denying bail. Our Constitution guards against the arbitrary and unjustified deprivation of accused persons’ rights to freedom.

It is the duty and responsibility of presiding officers to ensure that a thorough risk assessment is performed to prevent a sustained violation of the right to liberty, justice and equality of foreign nationals. DM

Busisiwe Kamolane is based at the Centre for Applied Legal Studies, Wits University

Views expressed are not necessarily those of GroundUp