Bail Applications

A bail application may follow the arrest of an individual who does not wish to remain in custody pending his trial and for the duration of the trial. Usually, the purpose of detaining an individual pending his trial is to ensure his attendance at trial, but this can also be achieved in other ways, such as through the payment of bail.

The Criminal Procedure Act provides that any accused individual who is in custody may submit an application to be released on bail at any time before or during trial proceedings, but before conviction.

An accused person must be brought before a court within 48 hours of being arrested. The individual or his attorney may then apply for bail at this first appearance.

Types of bail that may be granted:

Police bail

Section 59 of the Criminal Procedure Act provides that an arrested person may apply for bail at the relevant police station within 48 hours of arrest and before the first appearance in court, provided that the offence does not fall under Part II or Part III of Schedule 2 as contemplated in the Act. In other words, this type of bail may be granted for “less serious” offences such as theft of items to the value of less than R2 500,00, common assault, or possession of certain drugs under a certain amount of grams.

Prosecutor bail

A prosecutor who is duly authorised by the Director of Public Prosecutions, may grant bail to an accused person before the first court appearance, provided that the offence in question is a Schedule 7 offence (such as culpable homicide, assault, robbery, theft and fraud to a value not exceeding R20 000).

Court bail

In all matters where the police of prosecutor can’t (or will not) grant bail, a formal application must be made to court.

This bail application will take the form of a formal hearing during which the accused person must disclose whether he has any previous convictions and/or pending criminal charges against him. The prosecutor may oppose bail and will then place his reasons for doing so on record, whereafter the court will consider all information and make a decision. The State bears the burden of proof in bail applications and must show that it not in the interest of justice to release the accused on bail.

When considering the matter, the court will take the following into account:

  • The nature of the offence;
  • The strength of the evidence against the accused;
  • The accused’s character and previous convictions;
  • The accused’s ties to the community;
  • The risk and the likelihood of the accused re-offending in the future;
  • The risk of the accused absconding for the hearing.

Bail may be denied where the accused is seen as a flight risk in the sense that they have the means to leave the country to avoid trial and prosecution. Bail may also be denied where the accused is seen as dangerous to the general public or likely to interfere with witnesses and/or the investigation.

The court will only grant bail if it is satisfied that it is in the interests of justice to do so.

The court may impose various conditions when granting bail, such as requiring the accused to report to the Police regularly, to surrender his passport, to refrain from contacting witnesses, being present at all court appearances, etc. If the accused fails to meet these conditions, he may be arrested again and his bail revoked.

Together with conditions, the court will determine the amount to be paid by the accused to secure his release. The amount will be determined having regard to the nature of the offence and the accused’s income. The amount is not meant to be punitive in nature, but must be sufficient to ensure that the accused will be present at trial in order to secure a refund.

This amount must be paid at the police station or court and a receipt will be issued. When the accused has complied with all conditions and was present at all court appearances, the bail amount will be refunded on finalisation of the trial, provided that the receipt can be furnished. The refund will be paid even if the accused is eventually convicted.

An accused person has the right to legal representation at his bail hearing and may still apply for bail even if he has previous convictions. It is important to consult an attorney as soon as possible following arrest in order to ensure that the accused’s rights are protected.

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