Bail in Criminal Procedures | What You Need to Know

Bail in South African criminal procedure is the conditional release of an accused person pending trial, secured by a deposit of money or a guarantee, and governed principally by Chapter 9 (sections 59–68) of the Criminal Procedure Act 51 of 1977 — read with section 35(1)(f) of the Constitution, which gives every arrested person the right to be released on bail “if the interests of justice permit, subject to reasonable conditions.” The right is not absolute: bail must be refused for Schedule 6 offences (murder, rape, robbery with aggravating circumstances, large-quantity drug dealing) unless the accused satisfies the court that bail is warranted, and may be refused on Schedule 5 offences on an interests-of-justice assessment. A bail application is normally brought in the magistrate’s court of the district where the accused is in custody, with a right of appeal to the High Court under section 67 if refused.

What Bail Is and the Constitutional Right to Be Released

Bail is the conditional release of an accused person pending trial, with the assurance — usually financial — that the accused will return to court and will not interfere with the investigation or witnesses. The bail deposit is refunded at the end of the case if every court date is honoured; if the accused fails to appear or breaches a condition, the money may be forfeited and a fresh arrest may follow.

The constitutional foundation is section 35(1)(f) of the Constitution of the Republic of South Africa, 1996, which gives every arrested person the right to be released on bail “if the interests of justice permit, subject to reasonable conditions.” That right is not absolute: Parliament may limit it where the interests of justice so require, and the Criminal Procedure Act does so through the Schedule 5 and Schedule 6 reverse-onus provisions set out below.

Two distinct routes exist and are easily confused:

• Police bail — release by the station commander or an investigating officer before the first court appearance, under section 59 of the Act.
• Court bail — release by order of the magistrate or judge under sections 60–65, after a formal bail hearing.

The Statutory Framework: Criminal Procedure Act 51 of 1977, Chapter 9

Bail in South Africa is governed by a single national statute — the Criminal Procedure Act 51 of 1977, with its Schedules — and applies uniformly across all provinces. The relevant sections are summarised below.

Section	What it governs
Section 59	Police bail — release by the station commander or an officer of equal or higher rank before the first court appearance.
Section 60	Bail in the lower court (magistrate’s court); sets the default entitlement to bail and the interests-of-justice factors.
Section 60(11)	Bail application after a previous refusal by the same court.
Section 60(11A)–(11B)	Procedural pathway for bail applications to the High Court after a magistrate’s court refusal.
Sections 61 and 62	Bail in respect of Schedule 5 (“Warned-List”) and Schedule 6 offences.
Sections 63 and 64	Special provisions for children and mentally ill accused.
Section 65	Bail in respect of Schedule 5 and 6 offences in the High Court.
Section 67	Appeal and review of bail decisions.
Section 68	Lodging of appeal and bail pending appeal.

Schedule 1, 5, and 6 Offences: How the Schedules Affect the Bail Test

The Criminal Procedure Act classifies offences into Schedules that determine the default position on bail. The three schedules that matter in practice are:

Schedule	Examples	Default position on bail
Schedule 1	Minor offences (most common-law and statutory offences not listed in Schedules 5 or 6).	Bail is the default unless the interests of justice clearly require otherwise.
Schedule 5 (“Warned-List”)	Part III of Schedule 5: certain forms of theft, fraud, assault, sexual offences, and drug-related offences.	Bail may be refused where the interests of justice so require — the court weighs the listed factors.
Schedule 6	Murder, rape and compelled rape, robbery with aggravating circumstances, kidnapping, large-quantity drug dealing, and offences under the Prevention of Organised Crime Act.	Reverse onus applies — the accused must satisfy the court on a balance of probabilities that bail should be granted, rather than the State having to show it should be refused.

The Interests-of-Justice Test (Section 60(4))

For Schedule 1 and Schedule 5 matters, and as part of the broader enquiry on Schedule 6 matters, the magistrate considers a closed list of factors when deciding whether the interests of justice permit release. These are the factors set out in section 60(4) of the Criminal Procedure Act:

1. The risk that the accused, if released, will:
   • Fail to appear at trial;
   • Attempt to influence or intimidate witnesses or tamper with evidence;
   • Undermine the proper functioning of the criminal justice system; or
   • Commit further offences.
2. The accused’s personal circumstances — financial position, family ties, employment, residence, character, and any prior convictions.
3. The nature and gravity of the offence charged (including whether the offence was violent or involved a weapon).
4. The strength of the prosecution’s case against the accused.
5. Any previous failure to appear or breach of bail conditions.

Police Bail vs Court Bail: How an Accused Person Gets Released

Police bail under section 59 is the faster and less formal route. The station commander or an officer of equal or higher rank may release an accused on a written warning, on bail with or without a deposit, or release them into the care of a person who undertakes to ensure attendance at court. Police bail is usually only available for less serious matters where the investigating officer is satisfied that the accused is not a flight risk and the case is straightforward.

Court bail under sections 60–65 is the route for anything more serious, or where the police declined to grant bail. The accused appears in the magistrate’s court (or, for Schedule 5 or 6 offences, sometimes the High Court), and a formal bail application is brought. A bail hearing may be brought on the accused’s first court appearance or on any later appearance if circumstances have changed. A prosecutor may oppose bail; the accused (or their attorney) leads evidence and argument in support of release.

The Bail Hearing: What Happens Step by Step

The bail hearing itself follows a consistent sequence, whether in the magistrate’s court or the High Court:

1. The accused appears in court, whether after arrest and detention or on a summons.
2. If the matter is bail-eligible, the accused (or their legal representative) formally applies for bail.
3. The magistrate or judge enquires into the accused’s personal circumstances and the offence’s schedule classification.
4. The State may lead evidence or argument in opposition, including the investigating officer’s input.
5. The defence leads evidence — usually the accused’s affidavit, sometimes supporting witnesses, character references, or proof of residence and employment.
6. Both sides may address the court on the interests-of-justice factors.
7. The magistrate or judge delivers a decision, either granting or refusing bail and (if granted) setting the amount, conditions, and a return date.
8. If bail is refused, the accused is remanded in custody and may appeal under section 67.

Conditions of Bail and What Happens if They Are Breached

A grant of bail is rarely unconditional. Common conditions imposed by a magistrate or judge include:

• A fixed monetary deposit (cash or electronic transfer).
• A surety — a third party who undertakes to pay a stated sum if the accused absconds.
• Reporting to a designated police station on specified days and times.
• Surrender of a passport or travel documents and a prohibition on leaving the country without court permission.
• A prohibition on contacting witnesses, complainants, or co-accused.
• A residence restriction (the accused must reside at a stated address and may not move without notice to the investigating officer).
• A curfew.

Breaching any condition without lawful excuse is an offence under section 68 of the Criminal Procedure Act — it can lead to bail being forfeited, bail being cancelled, and re-arrest. Failure to appear in court on a bail date (colloquially, “jumping bail”) is itself a criminal offence under section 67 and is an independent ground for refusing bail on any subsequent application.

After-Hours and Urgent Bail Applications

An accused may be arrested and held outside ordinary court hours — on a weeknight, over a weekend, or on a public holiday. The police bail route is often the only practical release in those first hours, but where police bail is refused or unavailable, urgent bail applications can be brought before a duty magistrate or to a judge in chambers. This is a critical, time-sensitive procedure: a missed bail window can mean days or weeks in custody before the next ordinary court date.

A competent criminal-defence attorney is essential for after-hours bail. The after-hours bail application is typically brought at the magistrate’s court of the district where the accused is held — usually the same station precinct where the arrest took place. Families commonly ring around looking for any attorney willing to attend; what they need is one set up for after-hours criminal-defence intake across the Gauteng magisterial districts, which is the practical first call for most arrests in the Johannesburg–Pretoria metro.

What Happens if Bail Is Refused

An accused whose bail application is refused has three recognised routes back to a bail hearing:

1. Appeal to the High Court under section 67 — a full rehearing of the bail application, usually with a fresh affidavit and supplementary evidence.
2. A second bail application in the same court on the basis of “new facts” — facts not previously before the original court that materially change the bail picture. Recognised examples include a change in residence, the securing of a job offer, the unavailability of a State witness, a deterioration in the accused’s health, or a material change in personal circumstances. A mere reformulation of the prior application is not enough; the new facts must be materially different.
3. Direct application to the High Court under section 60(11B) — available to an accused held for 30 days without bail in a Schedule 5 or 6 matter.

These routes are not mutually exclusive and may run in parallel in serious matters.

Schedule 5 and 6 Reverse Onus in Practice

For Schedule 6 offences, the accused bears the burden of showing on a balance of probabilities that bail should be granted. Schedule 6 bail applications are typically brought in the High Court, either directly or on appeal from a magistrate’s court refusal. Factors that have been successfully raised to discharge the reverse onus include:

• Stable residence and length of time at that address.
• Stable employment or a confirmed job offer.
• Family ties in the area (minor children at school, a dependent spouse, caring for an elderly relative).
• Willingness to surrender travel documents.
• Demonstrable health needs that cannot be managed in custody.
• No prior convictions.
• Weak State evidence (for example, a single witness with credibility problems).
• Time already spent in custody.
• Offers of electronic monitoring.

The Difference Between Bail Pending Trial, Bail Pending Appeal, and Parole

These three forms of release are often confused by the public but operate under completely different statutory frameworks:

Type	When it applies	Authority that grants it
Bail pending trial	Release while awaiting the trial itself.	Magistrate or judge — sections 60–65 of the Criminal Procedure Act.
Bail pending appeal	Release after conviction while the appeal is prosecuted.	Magistrate or judge — section 68 of the Criminal Procedure Act.
Parole / correctional supervision	Release from a custodial sentence after part of the sentence has been served.	Correctional Supervision and Parole Board, not a court.

Practical Considerations for an Accused Person or Family Member

For a family member receiving a call that a loved one has been arrested, the practical steps in the first 48 hours usually determine whether the accused is released on police bail or spends the next court date in custody. The basic moving parts:

Step	What to do
First 48 hours	Engage a criminal-defence attorney as soon as possible — this improves the chances of police bail or a successful first court bail application.
Information to gather	The accused’s identity document, the SAPS case number, the charge sheet, address proof, employment details, medical needs, and contact information for a potential surety.
Cost of bail	Bail amounts vary from a few hundred rand for minor matters to several hundred thousand rand for serious matters. Bail can be paid in cash, by electronic transfer, or by way of a surety bond — the accused usually does not need to pay the full amount in cash, as a surety may be accepted at a percentage, depending on the court’s direction.
If you cannot afford an attorney	Legal Aid South Africa provides bail-application assistance to qualifying accused; alternatively, a private attorney will typically quote a fixed fee for a bail application and may offer instalment-payment arrangements.

Frequently Asked Questions

What is bail in criminal procedure?

Bail in criminal procedure is the conditional release of an accused person pending trial, normally secured by a financial deposit or surety, governed by sections 59–68 of the Criminal Procedure Act 51 of 1977. The court may attach conditions such as a reporting duty, residence restriction, or surrender of passport, and breach of any condition is itself an offence.

Does everyone have the right to bail in South Africa?

Not absolutely. Section 35(1)(f) of the Constitution gives every arrested person the right to be released on bail if the interests of justice permit, but the Criminal Procedure Act provides that bail must be refused for Schedule 6 offences (such as murder, rape, robbery with aggravating circumstances, and large-quantity drug dealing) unless the accused satisfies the court on a balance of probabilities that bail is warranted. Bail may also be refused on Schedule 5 offences where the interests of justice require it.

What is the difference between Schedule 5 and Schedule 6 offences for bail purposes?

Schedule 5 offences (the “Warned-List”) are serious offences such as certain thefts, assaults, fraud, and drug-related crimes; the court may refuse bail where the interests of justice require. Schedule 6 offences are the most serious — including murder, rape, robbery with aggravating circumstances, kidnapping, and large-quantity drug dealing — and impose a reverse onus: the accused must satisfy the court that bail should be granted, rather than the State having to show it should be refused.

How long does a bail application take?

A straightforward bail application in the magistrate’s court is usually heard on the accused’s first or second court appearance, often within a few days of arrest. Complex Schedule 6 matters that go to the High Court can take longer; urgent after-hours bail applications can be brought the same day at a duty court.

What happens if bail is refused?

The accused may appeal to the High Court under section 67 of the Criminal Procedure Act, or bring a fresh bail application in the same court on the basis of “new facts” — facts not previously before the original court that materially change the bail picture. An accused held for 30 days without bail in a Schedule 5 or 6 matter may also apply directly to the High Court under section 60(11B).

Can the State appeal a decision to grant bail?

Yes — under section 67 of the Criminal Procedure Act, the State may appeal or bring a review against a decision to grant bail. The accused remains released pending the appeal unless the High Court orders otherwise.

Need urgent bail help? If you or a family member has just been arrested, contact Burger Huyser Attorneys’ after-hours bail line on 069 522 7696 — the line is staffed for criminal-defence intake across all nine Gauteng branches, including weekends and public holidays. The firm runs bail applications through its general litigation practice, with specialist consultant Clinton Shaw leading the criminal-law work and admitted attorney Abrie van der Merwe handling bail files out of the Linden head office. For non-urgent bail instructions, call the head office in Linden, Randburg on 011 888 0246 during office hours (Mon–Fri, 7:30am–4:30pm). Burger Huyser Attorneys carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and was named Best Specialist Criminal & Family Law Firm 2022 (MEA Business Awards), making the firm a credible choice for both first-appearance bail applications and High Court appeals under section 67 of the Criminal Procedure Act.