When Can Bail Not Be Granted? | Key Legal Situations Explained

Bail can be refused in South Africa under section 60 of the Criminal Procedure Act 51 of 1977 whenever the “interests of justice” do not permit the accused’s release — the court weighs specific factors, including the likelihood of absconding, the risk of witness interference, the gravity of the offence, prior convictions, and the safety of any particular person or the community. For Schedule 5 offences (theft, assault, fraud, malicious damage to property) the State carries the burden of showing why bail should be refused; for Schedule 6 offences (murder, rape, robbery with aggravating circumstances, kidnapping, drug trafficking) the position reverses — bail is not a right and the accused must show on a balance of probabilities why release is warranted. Refusal can also follow from the accused’s conduct on prior bail, from an outstanding warrant, or from a finding that they will not stand trial or will endanger a complainant. Once bail is refused, section 65 of the Act allows a formal appeal to a High Court judge, section 304 permits review of a magistrate’s discretion, and section 60(14) permits a fresh bail application where materially different facts have arisen since the refusal.

The rest of this article walks through each of those moving parts in plain English — the statutory framework under section 60, the Schedule 5 / Schedule 6 distinction, the interests-of-justice factors courts actually weigh, the post-refusal routes (appeal, review, new-facts application), and the practical implications of all of this for an accused person or a family member acting on their behalf.

The Legal Framework: Section 60 of the Criminal Procedure Act

Section 60 of the Criminal Procedure Act 51 of 1977 governs the grant and refusal of bail in every South African court — magistrate’s court, regional court, and High Court. Every bail decision, in any schedule, is decided by applying the “interests of justice” test. Section 60(1) confirms the constitutional default — bail is a right, not a privilege — and section 60(4) lists the factors the court must weigh; section 60(11) governs Schedule 6 matters specifically.

The Act draws a careful distinction between Schedule 5 (less serious) and Schedule 6 (more serious) offences. The same underlying test applies to both, but the burden of proof shifts depending on which schedule the charge falls into. That shift is the single most important practical difference between the two schedules and is the reason a Schedule 6 bail application is a fundamentally different exercise from a Schedule 5 one. The schedules themselves, as gazetted, are downloadable from the South African Government Information portal.

Schedule 5 Offences — The State Must Justify Refusal

Schedule 5 lists less serious but indictable offences such as theft (under certain thresholds), assault, fraud, malicious damage to property, and perjury. The presumption favours release — the State must show, on a balance of probabilities, that the interests of justice do not permit bail. Even in Schedule 5 matters, refusal is possible where the State discharges this burden with credible evidence (flight risk, prior absconding, witness-tampering allegations, an outstanding warrant from an earlier matter), but the starting position is that the accused is entitled to be released.

For an accused, the practical takeaway is that the State must lead the evidence on refusal — the accused can respond, but is not required to put up facts or affidavits to obtain release in the first place. For the prosecution, the practical takeaway is that a refusal on a Schedule 5 charge requires a properly motivated opposing affidavit and credible facts, not bare submissions.

Schedule 6 Offences — The Accused Must Justify Release

Schedule 6 lists the most serious offences: murder, rape, robbery with aggravating circumstances, kidnapping, drug trafficking (above statutory thresholds), and treason. The presumption cuts the other way — bail is not a right, and the accused must persuade the court that the interests of justice do in fact permit release. Section 60(11) sets out the Schedule 6 weighing factors and confirms that the accused must adduce evidence (not just argument) on each factor.

Schedule 6 bail applications are treated as urgent and can be heard after hours, on weekends, and on public holidays — Gauteng magistrates’ courts operate an after-hours roster for exactly this purpose because the Act requires a Schedule 6 accused to be brought before a court within 48 hours of arrest. The practical consequence is that Schedule 6 matters cannot wait for ordinary court hours: an accused arrested on a Friday night needs an after-hours bail hearing before the 48-hour clock runs out.

Burger Huyser Attorneys’ criminal-law practice fields after-hours Schedule 6 bail applications across Gauteng, with after-hours bail coverage on 069 522 7696 — a call that routes the matter to a practitioner who can attend the after-hours sitting, prepare the founding affidavit (which on a Schedule 6 matter must adduce evidence rather than make bare argument), and argue the section 60(11) interests-of-justice factors before the on-duty magistrate. The firm’s Criminal Law work is led at specialist-consultant level by Clinton Shaw and at admitted-attorney level by Abrie van der Merwe at the Linden head office; after-hours bail calls are handled by the firm’s duty roster regardless of which branch is nearest to the arrest station.

The Interests-of-Justice Test: Grounds That Weigh Against Bail

Whether the burden rests on the State or the accused, section 60(4) requires the court to weigh the same family of factors. The factors are not a checklist — they are interrelated, and the weight given to each will depend on the facts of the matter. Magistrates and judges ordinarily approach the test as follows:

Factor	What the court actually looks at
Likelihood of absconding / flight risk	Family ties, employment, fixed residence, prior absconding history, outstanding warrants, and the strength of community ties in the area where bail is sought.
Risk of interfering with witnesses or the investigation	Nature of the charge, the relationship between accused and witnesses, prior attempts at interference, and any bail-condition breaches on earlier matters.
Risk of committing further offences while on bail	Prior convictions, patterns of offending, and the gravity of the charge under consideration.
Gravity of the offence and strength of the State’s case	Courts weigh the apparent strength of the prosecution’s evidence at the bail stage without prejudging the trial.
Prior convictions and criminal record	Assessed for relevance to the current charge and any pattern of offending — not just as a generalised prejudice.
Public order and community safety	Credible evidence that release would endanger a particular person or the community at large.
Accused’s physical or mental condition	Relevant to the risk factors above or to the appropriateness of custody as a setting.

On a Schedule 6 matter, the accused must lead evidence on each factor — silence and boilerplate affidavits are not enough. The expertise in a Schedule 6 application lies in front-loading the founding affidavit with the evidence that addresses every factor the State is likely to raise, rather than waiting to respond in oral argument.

Recent Case Law: How Courts Are Applying the Test

Appellate courts are actively intervening on bail where the lower court misapplied the section 60 factors or failed to weigh an important factor. The 2025 decision in Kweleta and Others v S (Bail Appeal) (CA & R 115/2024) from the Eastern Cape High Court, Mthatha, is a recent example of the appellate courts harmonising section 60 with constitutional norms and scrutinising the lower court’s reasoning on the interests-of-justice factors. The case is a useful citation for any argument that a magistrate’s discretion was not properly exercised: it shows that the appellate courts will not simply rubber-stamp a refusal, but will engage with the weighing process section 60 requires.

Case law confirms another important limit — the appellate and review avenues do not let an applicant re-run the same argument. The new facts on which a fresh application is brought must be materially different in kind, not just in emphasis. This is the boundary that stops endless bail applications after a refusal, and it is the very first question a specialist will ask when an accused returns after a refusal: is there something genuinely new, or is this the same argument in different words?

After Refusal: What Happens Next and What Options Remain

Once bail is refused, the accused remains in custody pending trial, subject to the section 63 review requirements — a magistrate must review the continued remand after 90 days and again after 180 days. Those reviews are not bail applications, but the defence can use them to test the State’s readiness for trial and, in appropriate cases, to renew the bail argument where circumstances have changed.

Beyond the section 63 reviews, three post-refusal routes are available. The specialist’s task is to identify which route fits the file:

Route	Statutory basis	When it is the right fit
Formal appeal to a High Court judge	Section 65, Criminal Procedure Act	The magistrate misapplied the section 60 test or failed to weigh an important factor; argued on the record from the bail court plus any further evidence properly before the appeal court.
Review of the magistrate’s discretion	Section 304, Criminal Procedure Act	The magistrate exercised the discretion improperly, capriciously, or on a wrong principle of law — even where the appeal court might not otherwise interfere.
Fresh bail application on new facts	Section 60(14), Criminal Procedure Act	Materially different facts have arisen since the refusal — new evidence, lapse of time, change in circumstances, withdrawal of a co-accused.
Constitutional challenge	Section 12, Constitution of the Republic of South Africa, 1996	Where the refusal infringes the right to liberty — rare and fact-specific, but available in principle.

Section 60(9) of the Act independently requires the court to record its reasons for any bail decision — including the weight given to each interests-of-justice factor and the basis for finding that the burden has or has not been discharged. A refusal that does not record reasons is itself vulnerable to review. Practitioners will always request the written reasons as a first step after a refusal.

Why a Specialist Makes a Difference in Bail Applications

The law on bail refusal is settled. The difference between a refusal and a release almost always comes down to how the section 60 factors are framed in the founding affidavit and at the hearing. A few practical points make the difference between a specialist and a generalist on these matters:

• Schedule 6 matters require evidence, not argument. The founding affidavit must pre-empt every factor the State will raise — bare argument is not enough and will be treated as an admission against the accused on each unaddressed factor.
• Witness-tampering allegations and prior convictions need careful framing. The magistrate must distinguish pattern from propensity, and from genuine rehabilitation; sloppy framing collapses the distinction and is treated as an aggravating factor.
• After-hours Schedule 6 courts sit on weekends and public holidays. Having counsel on call who can prepare and argue an urgent application the same night materially affects the outcome — the 48-hour clock does not pause for office hours.
• On refusal, the right route must be identified at the outset. Section 65 appeal fits a wrong application of the test; section 304 review fits a discretion improperly exercised; section 60(14) fits a genuine change in circumstances. Choose the wrong route and the accused loses time on bail they could have spent on trial preparation.

Burger Huyser Attorneys’ Criminal Law practice is built around exactly this work — specialist-level bail preparation, representation at the after-hours Schedule 6 sittings, and the post-refusal advocacy that follows a refusal. The firm’s criminal-law practitioners are on the after-hours bail roster across Gauteng, and the practice is led at specialist-consultant level by Clinton Shaw and at admitted-attorney level by Abrie van der Merwe at the Linden head office.

Frequently Asked Questions

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

Both schedules attract the same interests-of-justice test under section 60 of the Criminal Procedure Act, but the burden of proof flips. For Schedule 5 offences (less serious, e.g. theft, fraud, assault) the State must show why bail should be refused. For Schedule 6 offences (the most serious — murder, rape, robbery with aggravating circumstances, kidnapping, drug trafficking) the accused must show why release should be granted; bail is not a right.

Can a magistrate refuse bail without giving reasons?

No. Section 60(9) of the Criminal Procedure Act requires the court to record its reasons for any bail decision — including the weight given to each interests-of-justice factor and the basis for finding that the burden has or has not been discharged. A refusal that does not record reasons is vulnerable to review.

How long after a bail refusal can you apply again?

A fresh bail application on the same facts will ordinarily be refused as an abuse of process. Under section 60(14), a fresh application is permitted where materially different facts have arisen since the refusal — for example, new evidence, the lapse of significant time, or a material change in circumstances. The new facts must be genuinely new, not a re-framing of the same argument.

Can you appeal a magistrate’s bail refusal?

Yes — section 65 of the Criminal Procedure Act permits a formal appeal against a magistrate’s bail refusal to a High Court judge. The appeal is argued on the record plus any further evidence the appeal court admits. A refusal can also be challenged by review under section 304 where the magistrate exercised the discretion improperly.

Does prior bail refusal elsewhere prevent bail in a new matter?

Not automatically. Each bail application is decided on its own facts under section 60, but the prior refusal is relevant evidence on flight risk, pattern of offending, and the accused’s response to earlier bail conditions. A specialist framing the application will address the prior refusal head-on rather than leave it for the State to raise.

What happens to the accused while the matter is pending after bail is refused?

The accused remains in custody, subject to the section 63 review requirements — a magistrate must review the continued remand after 90 days and again after 180 days. The defence can use these reviews to test the State’s readiness for trial and, in appropriate cases, to renew the bail argument.

If you — or someone close to you — have just been arrested or have been refused bail, contact Burger Huyser Attorneys’ criminal-law practice on the after-hours bail line 069 522 7696. The firm fields after-hours Schedule 6 bail applications across Gauteng, prepares the founding affidavit, attends the after-hours sitting, and — where bail is refused — advises on whether a section 65 appeal, a section 304 review, or a section 60(14) new-facts application is the right next step. Initial contact can be made at any hour; bring the case number, the charge sheet, the police station, and any prior bail reasons when you call. The firm’s Criminal Law work is led at specialist-consultant level by Clinton Shaw and at admitted-attorney level by Abrie van der Merwe at the Linden head office, and after-hours bail calls are routed through the firm’s duty roster to the nearest available practitioner regardless of which Gauteng branch is closest to the arrest station.