Bail the what, when and how.
Here is what you will need to know about bail.
If a person is arrested in South Africa, we assume the accused person remains presumed not guilty until the Court finds such a person guilty and may be entitled to release on bail. Our law also provides that no one should be detained without a trial.
In South Africa, a person has a choice as to whether or not to remain imprisoned or be released on Bail. There are occasions when the state will oppose the release where the party is a flight and/or where the crime committed is of such a nature that the release would harm the community.
Is the money paid to the Court or the police?
Bail is granted more readily when the accused is not a flight risk and can easily be found by law enforcement agencies. The presiding officer usually sets bail conditions that the accused must comply with. Further conditions could be handing in a passport and identity documents or reporting to a police station daily at a set time. This list is not, however, exhaustive.
An accused person can apply for Bail at any stage of the proceedings. However, this normally takes place in the form of Police bail for minor offences, Prosecutor bail for offences where only the prosecutor may grant Bail, or, more likely, before a court within 48 hours of arrest. The accused person may then apply to be released on warning or Bail if the case is not finalised on that day.
Through the police.
In terms of the Criminal Procedure Act, specifically section 59, the accused person may apply for Bail at the police station where the party was arrested or voluntarily submitted themselves to before the expiry of the 48 hours. However, this may only be done if the offence with which the party has been charged does not fall under Part II or Part III of the Schedule 2 Offences. These offences are usually seen as less serious and include, but are not limited to, Possession of Dagga, where this was less than 115 Grams, theft under the value of R 2 500, common assault or where the accused has driven more than the posted speed limit. This form of Bail can also take the form of a release on warning and not have a monetary amount attached.
Through the prosecutors.
The Criminal Procedure Act under section 59A further allows prosecutors’ Bail to be granted. This is done by a Prosecutor authorised by the DPP to effect such Bail and will usually be the prosecutor on standby. In this circumstance, the prosecutor will grant Bail before the accused appears in Court if the accused person is in custody for a schedule 7 Offence. These include offences that are slightly more serious, such as Possession of Drugs, Grievous Bodily Harm (GBH), Theft, Fraud and Robbery.
Bail under formal proceedings in Court.
The Criminal Procedure Act further provides formal proceedings in Court under Section 60. Here, the accused, usually through an attorney or Legal Aid, will request that the Court consider granting Bail and explain why it would be in the best interest of justice to allow their release on Bail. The state will then inform the Court whether or not they oppose the Bail and, if they do, explain their reasons for such opposition.
At the end of the application, the Magistrate or Judge, depending on the Court where the application is made, will rule on the bail application. If successful, they will usually impose various bail conditions and set the amount of Bail applicable.
If a party successfully proves their innocence in the trial, or if the state fails to convince the Court of the Accused’s Guilt, the accused will be entitled to reclaim the monetary amount spent on Bail.
If an accused fails to appear in Court after being released on Bail and fails to convince the Court that it had a valid reason, then the accused will forfeit the amount to the state.
If you would like to know more about your rights upon arrest, please click here.
If you would like to access resources on bail procedure in South Africa, please click here.
If you would like more info on building a strong legal defence click here.
If you would like to know more about the plea bargaining process click here.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE)
