WHAT HAPPENS TO BAIL AFTER BEING CONVICTED OF A SCHEDULE 5 OR 6 OFFENCE?

Bail does not survive a custodial sentence in the same form: under section 65 of the Criminal Procedure Act 51 of 1977, an accused who is convicted and sentenced to direct imprisonment without the option of a fine must apply afresh for bail pending appeal — any existing pre-trial bail lapses once the sentence commences, and the new application is heard against a stricter enquiry because the accused has been convicted of a Schedule 5 or Schedule 6 offence. An accused who is sentenced only to a fine, or to imprisonment with the option of a fine, keeps the existing bail in force and does not need to reapply.

The Short Answer: Bail Lapses Once a Custodial Sentence Begins

A pre-trial or pre-conviction bail guarantee is not automatically preserved through sentencing. Once the accused is sentenced to a period of direct imprisonment, the existing bail position falls away: the accused is taken into custody at the point the sentence commences unless fresh bail pending appeal is granted.

An accused still has the right to apply for bail pending appeal under section 65 of the Criminal Procedure Act — but this is a new application, not an automatic carry-over from the earlier pre-trial bail. Where the sentence is a fine only, or imprisonment with the option of a fine, the existing bail continues until the fine is paid or the option-period expires, and the accused may not be detained in the meantime.

The Statutory Framework: Section 65 of the Criminal Procedure Act

Section 65 of the Criminal Procedure Act 51 of 1977 sets the procedural route for bail pending appeal and divides the application between the lower courts and the High Court.

Sub-section	Conviction forum	Where the bail-pending-appeal application is heard
Section 65(1)	Magistrates’ court or regional court	The same court that convicted the accused — an accused sentenced to imprisonment without the option of a fine may apply to that court for bail pending appeal.
Section 65(2)	High Court	The High Court (typically a different judge than the one who convicted the accused).

Section 65 sets the scope of the application — it does not guarantee that bail will be granted. The court exercises a discretion and applies the standard bail-interests test, weighing the possibility that the accused may abscond, interfere with witnesses, or reoffend, and doing so against an accused who has now been convicted rather than presumed innocent.

Schedule 5 and Schedule 6 Offences: Why the Stakes Are Higher

Schedule 5 offences (for example, serious assault with a weapon, robbery involving weapons or aggravating factors, certain drug-dealing charges above statutory thresholds, and rape) and Schedule 6 offences (for example, murder, Schedule 5 offences plus organised-crime indicators, and certain repeat offences) sit at the more restrictive end of the bail spectrum.

• Schedule 5 — heightened enquiry compared with schedule-1 bail cases; the seriousness of the charge weighs more heavily against release.
• Schedule 6 — bail may only be granted if the accused demonstrates exceptional circumstances justifying release. This threshold was confirmed by the Constitutional Court in De Vos v S and Lamcourt v S, both rulings that upheld the Schedule 6 exceptional-circumstances requirement against constitutional challenge.
• Conviction escalates the enquiry further — the accused is no longer presumed innocent, and the court’s assessment of flight risk and danger shifts accordingly.

For practical purposes, this means a convicted person applying for bail pending appeal in a Schedule 5 or 6 matter is fighting uphill on two fronts at once: a stricter statutory threshold and a less favourable presumption.

What Happens Step by Step After Conviction

1. Conviction is handed down.
2. Sentencing argument — the court hears mitigation and aggravation.
3. Sentence is imposed — options include a fine, imprisonment with the option of a fine, or direct imprisonment.
4. If the sentence is a fine, or imprisonment with the option of a fine — existing bail continues. The accused does not need to reapply. If the fine is paid (or time to pay is granted), the matter ends without custody.
5. If the sentence is direct imprisonment without the option of a fine — bail lapses at the moment the sentence commences. The accused is taken into custody unless and until fresh bail pending appeal is granted.
6. Application for bail pending appeal — the accused (through an attorney) launches a fresh application under section 65, supported by an affidavit setting out the intended grounds of appeal. The grounds of appeal must be demonstrably strong prospects of success — a bare assertion is not enough. The application is heard urgently, often same-day or next-day in serious matters.
7. Outcome — the court either grants bail (with conditions), refuses bail (accused remains in custody), or, in a Schedule 6 case where the lower court has refused, escalates the application to a higher court under the recognised appeal routes.

What Conditions Can Be Attached to Bail Pending Appeal

Standard Schedule 5 and Schedule 6 bail conditions tend to be more onerous than those imposed for schedule-1 offences. Conditions commonly attached include:

• high monetary deposits;
• monthly reporting to a designated police station;
• prohibition on contact with witnesses or complainants;
• electronic monitoring where ordered;
• surrender of travel documents and a bar on international travel;
• restriction on approaching certain addresses (such as the complainant’s home or workplace);
• house arrest in the most restrictive cases.

For Schedule 6 cases the threshold is exceptional circumstances — and the conditions attached to any release reflect the court’s reluctance to grant release at all.

The Role of Prospects of Success

Bail pending appeal is not a free-standing bail application. It is contingent on the existence of substantial prospects of success on appeal, in addition to the regular bail-interests factors. A weak appeal in a serious matter will weigh heavily against the granting of bail pending appeal; conversely, strong prospects of success — an arguable misdirection by the trial court on a vital point, for example — can shift the balance materially.

This creates a two-track obligation: the criminal appeal lawyer has to think about both the bail application and the underlying merits of the appeal together, because they are not separate decisions.

Frequently Asked Questions

Does my bail automatically continue after I am convicted?

No. If you are sentenced to a period of direct imprisonment without the option of a fine, your existing bail lapses at the moment the sentence commences and you go into custody. You (or your attorney) must lodge a fresh application for bail pending appeal under section 65 of the Criminal Procedure Act 51 of 1977.

Does the rule change for Schedule 5 and 6 offences?

Yes. Schedule 5 offences attract heightened scrutiny. Schedule 6 offences (the most serious, including murder and Schedule 5 offences with organised-crime indicators) require the accused to show exceptional circumstances before bail will be granted at all — a threshold confirmed by the Constitutional Court in De Vos v S and Lamcourt v S. A pending conviction makes that bar harder still.

I was only sentenced to a fine — do I need to reapply?

No. If you were sentenced to a fine only, or to imprisonment with the option of a fine, your existing bail continues. You may only be detained if you fail to pay the fine within the time granted to pay, or if you fail to satisfy the magistrate that you are unable to pay and need alternative arrangements.

Who hears the bail-pending-appeal application — the same court or a higher one?

If you were convicted in a magistrates’ or regional court, the application is heard in that same court under section 65(1). If you were convicted in the High Court, the application is heard in the High Court (typically a different judge than the one who convicted you) under section 65(2). When bail pending appeal is refused by a magistrates’ or regional court in a Schedule 6 case, the accused may take the application higher.

What do I need to show to be released on bail pending appeal?

Two things at minimum: (1) substantial prospects of success on appeal, supported in an affidavit that sets out the intended grounds and not just a generic statement of dissatisfaction with the verdict; and (2) the usual bail-interests factors (that you will not abscond, will not interfere with witnesses, will not reoffend) — the same factors as a pre-trial bail enquiry, but assessed against a person who has now been convicted.

I want to appeal — does the bail application start the appeal clock?

No. The bail-pending-appeal application and the underlying appeal are separate procedural steps. The notice of appeal must still be lodged and recorded within the timeframes set by the Criminal Procedure Act — usually seven days from sentencing. Your attorney will handle these together so neither deadline slips.

If bail pending appeal is refused, can I appeal that too?

Yes — there are recognised routes to escalate a refused bail-pending-appeal application to a higher court, particularly in Schedule 6 matters, and your attorney will advise on the appropriate route for your jurisdiction.

If you or a family member has been convicted of a Schedule 5 or 6 offence and needs to apply for bail pending appeal — or needs to understand what happens to existing bail at sentencing — contact Burger Huyser Attorneys’ Criminal Law team. The firm fields bail applications and after-hours bail work across Gauteng; the Centurion branch (012 644 4990, after-hours 069 522 7696) is staffed for urgent after-hours bail matters. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and operates from eight Gauteng branches. Time matters — a bail-pending-appeal application must be brought promptly after sentence, and the notice of appeal itself must be lodged on its own deadline.