Written by Nastasja Otrebski
23 February 2021
The Constitution of the Republic of South Africa makes provisions for an accused’s right to apply for bail. This means that any person who has been arrested can apply for bail, irrespective of the type of crime the person has been charged with.
WHAT ARE THE DIFFERENT TYPES OF BAIL APPLICATIONS?
There are three (3) different bail applications:
Police Bail:
In terms of Section 59 of the Criminal Procedure Act, an arrested person can apply for bail at the police station before 48 hours if the offence does not fall under Part II or Part III of Schedule 2 offences. A person can apply for bail if they have committed an offence which not of a serious nature, for example, offences such as theft under R2500, common assault, exceeding the speed limit or possession of dagga less than 115 grams etc.
It is therefore advisable to ask the Police officer what schedule your offence falls under if you get arrested. This will make it easier for your legal representative to ascertain whether they will be able to apply for bail at the police station and get bail immediately or whether you need to wait to be brought before the court.
Prosecutor Bail:
In terms of Section 59A, the Director of Public Prosecution, or a prosecutor authorised by the DPP, may authorise the release of an accused on bail before their first court appearance if the accused is charged with a Schedule 7 offence. A Schedule 7 offence is slightly more serious than that for which police may fix bail under Section 59, for example, culpable homicide, assault, grievous bodily harm, robbery, theft, possession of drugs and fraud where the amount involved does not exceed R20,000.
With other serious offences, the Court will, on a formal bail application, determine whether to grant bail or not. The accused must be brought before court within 48 hours of being arrested if bail has not been granted by the prosecutor or police.
Bail Applications in Court:
If a person is charged with a schedule 5 or schedule 6 offence, they will need to make a formal bail application before court in terms of Section 60 of the Criminal Procedure Act. This bail application can be made by way of an affidavit or, alternatively, by calling witnesses or the accused to the stand.
The accused must inform the court of any pending cases or previous convictions at the bail hearing. If the accused does not disclose this, it is a criminal offense. The prosecutor may state, on record, why bail should not be granted if they feel the need to oppose the bail. The court will take all this information into account before making a decision. The court will also take various other factors into account before granting the bail. If necessary, the court may postpone the application in order to make a decision. The postponement should not be longer than 7 days.
WHAT DOES THE COURT TAKE INTO CONSIDERATION WHEN CONSIDERING WHETHER OR NOT TO GRANT BAIL?
The accused will need to prove on a balance of probabilities that there is no chance of the following should the court grant bail:
If the Magistrate is of the opinion that one of the above instances exists, bail will be refused. This means that you will be placed in custody until the end of your trial, which can take years. Once bail is denied, you can not apply for bail again unless new facts arise or your personal circumstances change. An accused could appeal the ruling if bail were refused.
CAN THE COURT REVOKE BAIL ONCE IT HAS BEEN GRANTED?
Once bail has been granted, the accused needs to be present at every appearance. If an accused fails to attend a court appearance, bail can be revoked, and the accused can be arrested and taken into custody.
HOW DOES THE COURT DETERMINE THE AMOUNT OF BAIL PAYABLE?
The amount of bail attached to someone’s release on bail does not indicate whether it is a strong case or a serious one. The amount is determined to secure an accused’s return to court to finalise the matter.
If the accused cannot afford the bail amount that has been set, an argument can be made for a reduction. If the accused cannot afford the bail, they will stay in a facility until the trial is finalised. This is called remand detention.
An accused needs to bear in mind that anything they say or use during the bail application can be used against them during the trial. They should also avoid going into the merits of the crime during the bail application, as it opens the floor for the prosecution to go into the merits as well. It is therefore of vital importance for the accused to know the bail procedure or at least have an experienced attorney to represent him/her.
Contact Burger Huyser Attorneys to assist you with your bail application. Our criminal law bail applications lawyers have years of experience in walking clients through the bail application process. You can trust that Burger Huyser Attorneys will offer you peace of mind through our expertise in this area.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
