Bail

This article will briefly deal with the issue of bail and in what circumstances a person who has been arrested for an alleged offence is entitled to be released on bail.
It is important to note that every person who is accused of committing an offence is presumed innocent until proven guilty and has a right to freedom, and bail is a mechanism to give effect to these fundamental rights prior to a Court making a final determination of the accused’s guilt after a trial.

What is Bail?

Bail is not to be seen as a punishment and its purpose is to ensure the temporary release of someone who has been arrested for an alleged criminal offence. The general rule is that the release on bail should be in the interests of justice. The purpose of bail is to ensure that the individual will attend all his/her future court appearances until the case has been finalised. Although there is no correlation between the amount of bail to be paid and the offence committed, the Court can take into account the severity of the offence as one factor to be considered in determining the amount to be paid.

Police Bail

The accused or his/her legal representative can apply for bail at the police station before the accused’s first court appearance at court. Police bail may be granted for offences that do not fall under Parts II or III of schedule II of the Criminal Procedure Act. The police may determine bail for the following crimes:

  • assault
  • theft, where the value of the stolen goods is less than R2 500
  • crimen iniuria (culpable defamation)
  • possession of a small amount of dagga
  • drunk driving
  • reckless or negligent driving

The amount set by the police official must be paid and the accused will be released from custody. It is important that the person who is paying the bail should be in possession of their identity document/passport. The police official will give a receipt and notice indicating the alleged offence together with the date and time the accused should appear at court. The person who paid the bail amount should retain the original receipt, as this will need to be submitted on finalisation of the case in order to get a refund.

Application for Bail in Court

If police bail is not granted, then the accused can apply for bail at the first court appearance. The prosecutor will indicate whether the State is opposing bail or not. If bail is not being opposed, it does not automatically mean the Court will grant bail. The Court still has a duty to weigh up the personal interests of the accused against the interests of justice and provided the Court is satisfied that the interests of justice dictate that bail should be granted, will set an amount to be paid together with any conditions which the accused will need to adhere to while out on bail, such as for the accused to report to the nearest police station once a week, surrendering of passport and not contacting any of the state witnesses.

If bail is opposed by the State, then a formal bail application will need to be made by the accused’s legal representative and the Court may at the hearing of the application for bail:

  1. postpone the application for 7 days or less;
  2. obtain further information that is needed in order to make a decision regarding bail; or
  3. require the prosecutor to place on record any reasons for opposing the application.

After hearing the application for bail and taking into account the relevant personal circumstances of the accused, the nature and severity of the offence with which the accused has been charged, the strength of the evidence against the accused and the interests of justice, the Court may release the accused on bail, provided that the interests of justice permit the accused’s release or if there are exceptional circumstances that exist, for example, where the accused has an illness, which prevent him/her from being detained.

If, after bail has been granted, the accused does not attend court on all future dates and times to which the case is postponed, or fails to comply with the conditions set for bail, the bail will be cancelled and the bail money paid will be forfeited to the State, unless the accused can give the Court good reasons why he/she failed to appear or comply with the conditions.

Where the accused fails to appear in court, a warrant of arrest will be issued and he/she will be rearrested.

Refusal of Bail

The Court will not release an accused on bail in the following circumstances:

  1. there is a chance that the release of the accused will endanger his/her own safety, the safety of the public or any other particular person;
  2. there is a chance that the accused will avoid his/her trial;
  3. there is a chance that the accused will attempt to influence or intimidate witnesses, or hide and/or destroy evidence;
  4. there is a chance that the accused will undermine or endanger the functioning of the justice system including the bail system; or
  5. there is a chance that the accused will disturb public order or undermine public peace and security.


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