Bail: What it is and when it will be granted.

If a person is arrested in South Africa, we assume the notion that the accused person remains to be presumed not guilty until the court finds such a person guilty. Our law also provides that no one should be detained without a trial.

In South Africa, there is a choice a person holds as to whether or not you wish to remain imprisoned or if you wish to be released on bail. There are occasions when the state will oppose the granting of Bail where the party is a flight risk and/or where the crime committed is of such a nature that the release on bail would be harmful to the community.

Bail is the sum of money paid to the court or to the police.

Bail is granted more readily when the accused is not a flight risk and can easily be found by law enforcement agencies. There are usually bail conditions set by the presiding officer that the accused must comply with. Further conditions could be the handing in of 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 and he or she may then apply to be released on warning or bail if the case is not finalised on that day.

Police Bail:

In terms of the Criminal Procedure Act, and more 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 in nature and include, but are not limited to, Possession of Dagga where this was less than 115 Grams, theft that was under the value of R 2 500, common assault or where the accused has driven in excess of 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 to it.

Prosecutors Bail:

The criminal Procedure act under section 59A further makes provision for prosecutors bail to be granted. This is done by a Prosecutor who has been authorised by the DPP to effect such bail and will usually be the prosecutor on standby. The prosecutor will, in this circumstance, 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 in nature, such as Possession of Drugs, Grievous Bodily Harm (GBH), Theft, Fraud and Robbery.

Bail under formal proceedings in Court:

The criminal Procedure Act further makes provision for formal proceedings in Court under Section 60. Here the accused, usually through the use of an attorney or Legal Aid, will request that the court consider granting bail and put forth its reasons 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 then if they do, put forth their reasons for such opposition.

At the end of the application, the Magistrate or Judge, depending on the Court where application is made, will make a ruling on the bail application, and if successful 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 Guilt, the accused will then be entitled to reclaim its monetary amount spent on bail.

If an accused, however, fails to appear in court at any point in time 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.

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 any errors or omissions nor any loss or damage arising from reliance upon any information herein. Please feel free to contact Meyer and Partners Attorneys Incorporated should you require further information or specific and detailed advice. Errors and omissions excepted (E&OE)

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