| (1) | If a Head of Prison contemplated in the Correctional Services Act, 1998 (Act No. 111 of 1998), is satisfied that the prison population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused— |
| (a) | who is charged with an offence falling within the category of offences— |
| (ii) | referred to in Schedule 7; |
| (b) | who has been granted bail by any lower court in respect of that offence, but is unable to pay the amount of bail concerned; and |
| (c) | who is not also in detention in respect of any other offence falling outside the category of offences referred to in paragraph (a), |
that Head of Prison may apply to the said court for the—
| (aa) | release of the accused on warning in lieu of bail; or |
| (bb) | amendment of the bail conditions imposed by that court on the accused. |
| (a) | An application contemplated in subsection (1) must be lodged in writing with the clerk of the court, and must— |
| (i) | contain an affidavit or affirmation by the Head of Prison to the effect that he or she is satisfied that the prison population of the prison concerned is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of the accused concerned; and |
| (ii) | contain a written certificate by the Director of Public Prosecutions concerned, or a prosecutor authorised thereto by him or her in writing, to the effect that the prosecuting authority does not oppose the application. |
| (b) | The accused and his or her legal representative, if any, must be notified of an application referred to in subsection (1). |
| (c) | The clerk of the court must, without delay, cause the application to be placed before any magistrate or regional magistrate, as the case may be, who may consider the application in chambers. |
| (d) | The application may be considered in the presence of the accused if the magistrate or regional magistrate deems it necessary. |
| (a) | If the magistrate or regional magistrate is satisfied that the application complies with the requirements set out in subsection (2)(a), he or she may— |
| (i) | order the release of the accused from custody and, if the accused is present, warn him or her to appear before a specified court at a specified time on a specified date in connection with such offence or, as the case may be, to remain in attendance at the proceedings relating to the offence in question, and the court may, at the time of such order or at any time thereafter, impose any condition referred to in section 62 in connection with such release; or |
| (ii) | reduce the amount of bail determined under section 60 and, if deemed appropriate, amend or supplement any condition imposed under section 60 or 62. |
| (b) | If the accused is absent when an order referred to in paragraph (a)(i) is made or when bail conditions are amended in terms of paragraph (a)(ii), a correctional official duly authorised by the Head of the prison where the accused is in custody must— |
| (i) | hand to the accused a certified copy of the said order or of the bail conditions as amended and explain to the accused the import thereof; and |
| (ii) | return to the clerk of the court a certificate under the hand of that official and signed by the accused, that he or she has handed the certified copy of such order or conditions to the accused and that he or she has explained to the accused the import thereof, |
and the mere production to the court of the said certificate shall be prima facie proof that the said certified copy was handed and explained to the accused.
| (c) | The provisions of section 72(2)(a) apply, with the necessary changes, in respect of an accused released in terms of paragraph (a)(i). |
| (a) | The National Director of Public Prosecutions may, in consultation with the Commissioner of Correctional Services, issue directives regarding— |
| (i) | the establishment of monitoring and consultative mechanisms for bringing an application contemplated in subsection (1); and |
| (ii) | the procedure to be followed by a Head of Prison and a Director of Public Prosecutions whenever it appears that it is necessary to bring an application contemplated in subsection (1). |
| (b) | Any directives issued in terms of paragraph (a) must be submitted to Parliament before they take effect. |
[Section 63A inserted by section 6 of Act No. 42 of 2001]
