Justice & constitutional development minister Mmamoloko Kubayi has confirmed that bail reform and alternative sentencing are central to the government’s strategy to reduce overcrowding in South Africa’s prisons. This came in a written reply to Rise Mzansi MP Makashule Gana, who asked what interventions the department had adopted to reduce the number of unsentenced inmates and people incarcerated for minor offences. Kubayi said her department had requested the South African Law Reform Commission to review the Criminal Procedure Act of 1977, with a focus on bail provisions, and that draft legislative proposals are expected to be finalised by March 2026.
The minister’s reply emphasised that delays in trials, postponements of bail applications and unaffordable bail amounts are major contributors to overcrowding. She cited the case of S v Moredi, where the accused spent 17 months in remand detention and 22 months before the conclusion of the trial because he could not afford bail of R500, as evidence of systemic shortcomings. The Judicial Inspectorate for Correctional Centres reported that 2,724 detainees were unable to pay bail amounts below R1,000, with some unable to afford as little as R200.
These figures highlight the extent to which indigence and procedural delays drive congestion in correctional facilities, with remand detainees now constituting more than a third of the total inmate population. Proposed reforms include allowing property pledges as security for bail, presuming indigence if bail remains unpaid after one week, prohibiting pre‑trial detention for fine‑only or minor offences, and mandating release if trials do not commence within 90 to 120 days, unless the interests of justice require otherwise. Kubayi said these measures are intended to align bail practices with constitutional guarantees of liberty and fair trial under section 35 of the constitution.
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The reforms would also require courts to interrogate the cumulative effect of postponements and ensure that detention does not extend beyond reasonable limits, thereby addressing structural inefficiencies in case-flow management. On sentencing, Kubayi said magistrates remain constitutionally independent but confirmed that engagements are under way with the Chief Magistrates’ Forum and Regional Court Presidents’ Forum to encourage greater use of alternative sentencing for minor offences, such as fines or suspended sentences. Training on sentencing has been identified as a priority to ensure proportionality and fairness, with the department emphasising that judicial discretion must be exercised in a manner consistent with constitutional rights and statutory frameworks.
Kubayi’s position differs from that of correctional services minister Pieter Groenewald, who has focused on infrastructure expansion and operational measures such as parole placements, medical releases and bed‑space creation projects. Groenewald told parliament earlier this year that his department is implementing a programme to add 13,500 beds nationally, with projects under way in Burgersdorp and Parys. Kubayi’s reply situates overcrowding as a systemic problem rooted in bail practices, trial delays and sentencing policy, while Groenewald’s approach seeks immediate relief through expanded capacity.
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