Balancing rights and public safety: A comparative review of Arrest and Bail Reform in South Africa, Canada, and India

Balancing rights and public safety: A comparative review of Arrest and Bail Reform in South Africa, Canada, and India

Bulelani Thukuse & Paul S. Masumbe

Issue: Vol. 7 No.5 2026 Article 15 pp.1362 – 1373
DOI: https://doi.org/10.38159/ehass.20267515 Published online 26th June 2026

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ABSTRACT

This paper examines the ongoing debate on arrest and bail reform in South Africa, focusing on the constitutional values of dignity, equality, and personal liberty. It responds to concerns about arbitrary arrests, prolonged pre-trial detention, and the unequal application of bail laws that often disadvantage poor and vulnerable groups. Central to the discussion are the South African Law Reform Commission’s proposed amendments to the Criminal Procedure Act, which offer an opportunity to better align legal practice with constitutional principles. This article addresses the following questions: (i) how South Africa’s bail procedures fall short of constitutional and international norms; (ii) what the SALRC’s proposals offer in addressing fairness, access, and accountability; (iii) how a balanced bail regime can protect individual freedoms and public safety; and (iv) what comparative lessons can be drawn from Canada and India on judicial oversight, risk-based assessments, and custodial review. Using a qualitative, desktop-based research method and drawing on relevant case law, legislation, and existing literature, the article found that meaningful reform requires more than technical amendments. This article recommends clearer legal standards, improved training for police and judicial officers, and the use of evidence-based tools for consistent decision-making. Following on the existing literature, this study contributes by concluding that modernising arrest and bail laws is essential to protect the presumption of innocence and restore confidence in South Africa’s criminal justice system.

Keywords: Bail Reform, Arrest, Constitutional Rights, South Africa, Comparative Criminal Procedure

BIBLIOGRAPHY

Legislation & Case Law

Constitution of the Republic of South Africa, 1996.

Criminal Procedure Act 51 of 1977.

Plaatjies v S (CA&R51/2024) [2024] ZAECBHC 29 (12 November 2024).

S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98, CCT22/98, CCT2/99, CCT4/99) [1999] ZACC 8; 1999 (4) SA 623 (CC); 1999 (7) BCLR 771 (CC); 1999 (2) SACR 51 (CC) (3 June 1999).

Official documents

Centre for Applied Legal Studies, Barred (In)Justice.

Law Commission of India, Report No. 268: Bail Reform.

SALRC ‘Discussion Paper 167: Review of South Africa’s Bail System’ 2025, Chapter 1.

SALRC, Discussion Paper 166: Reform of the Arrest Dispensation.

SALRC, Discussion Paper 167, Chapter 2, 14-90.

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ABOUT AUTHOR(S)

Bulelani Thukuse (LLB) (LLM) is a Junior Lecturer in the School of Law, Faculty of Law, Humanities & Social Sciences, Walter Sisulu, South Africa. He also serves as a reviewer for Turf-Law Journal, South African Journal of Agricultural Extension (SAJAE), and African Journal of Nursing, Social Work and Traditional Healing Systems (AJONSOTHS). His research interests cut across International Criminal Law, Human Rights Law, and Labour Law, particularly issues relating to minimum wages as well as selected aspects of Private and Public Law.

Professor Paul S. Masumbe (LLD) is Associate Professor and Head of School of Law, Faculty of Law, Humanities & Social Sciences, Walter Sisulu, South Africa. He is an external examiner for master’s and doctoral degrees in law at various universities, a reviewer, and an editorial board member of local and internal journals. His research interests include International Criminal Law, Human Rights Law, Labour Law with emphasis on dismissal, and selected areas of Private Law.

TO CITE ARTICLE

Thukuse, Bulelani, and Paul S. Masumbe. “Balancing Rights and Public Safety: A Comparative Review of Arrest and Bail Reform in South Africa, Canada, and India.” E-Journal of Humanities, Arts and Social Sciences 7, no.5 (2026): 1362 – 1373. https://doi.org/10.38159/ehass.20267515