Written by Adele van Schalkwyk

15 March 2024

A bail application is an integral part of a criminal case as its outcome impacts the freedom of an accused person pending the finalisation of a criminal case. It is, therefore, of vital importance for an accused to know what factors or grounds disqualify them from bail when such an application is before the court.

What is bail?

Bail refers to when an arrested person is granted a temporary release pending the case’s outcome, on condition that a certain amount of money is paid to guarantee their return to court until the matter is finalised.  Certain conditions may be imposed; for instance, a person may be prohibited from leaving the district they reside in or required to hand in their passport to the appointed authority.

What Are the Grounds for Refusing Bail in South Africa? 

There are several factors or grounds that can lead to a court’s decision to refuse bail for an accused person, which include:

  1. The likelihood or risk of an accused fleeing and not standing his trial.  The sole purpose of bail is to ensure that an accused person stands his trial and does not flee; therefore, any risk of an accused person fleeing will result in the court’s refusal to grant bail.
  2. The severity of the offence. More serious offences resort under Schedule 5 and Schedule 6 of theCriminal Procedure Act 51 of 1977. In such instances, the court is obliged to refuse bail unless the accused person can prove that granting him bail is in the interest of justice or that exceptional circumstances permit his release on bail.
  3. The accused’s criminal history. Bail will be refused if an accused person has previous convictions and proves a propensity to commit similar offences. 
  4. Where an accused poses a threat to society or public safety. This relevant in cases of serious violent offences, organised crime, syndicates, or matters where the accused has a history of dangerous and illegal behaviour.  
  5. Where it is in the best interests of the accused to refuse bail. If it is not safe for the accused to be released due to fear of the public taking matters into their own hands, bail will be refused.
  6. There is a chance that an accused will attempt to influence or intimidate witnesses.
  7. Where the possibility exists that an accused will undermine or endanger the functioning of the justice system.
  8. Where the personal information of an accused can not be confirmed. If the investigating officer cannot confirm the accused’s personal information, for example, their name or address, bail will be refused.
  9. Where an accused person threatens the police or interferes with the investigation.
  10.  Where bail was initially granted, an accused person fails to attend court on the date and time allocated or fails to comply with any conditions set for bail. Unless the accused canprovide the court with a good and acceptable reason why he failed to appear in court or comply with the conditions, the accused’s bail will be cancelled, and the money will be forfeited to the state. Where an accused fails to appear in court at the allocated time and date, a warrant for his immediate arrest is issued.

Why was Bail Refused in S v Nkgayi and Others?

In the South African justice system, a person is presumed innocent until proven guilty. Therefore, the court must consider the impact its decision to grant or refuse bail will have on both the accused and society.  The court must weigh the interests of justice against any prejudice the complainant or society might suffer if bail is granted, as well as the constitutional right the accused has to personal freedom. The court makes use of the proportionality test: the likely harm to the complainant or society must be weighed against the accused’s loss of freedom.

In S v Nkgayi and others (2023), bail was refused based on the strength of the state case as well as the propensity of the accused to commit a Schedule 1 offence and the probability that he will commit such an offence again if released on bail.

Applying For Bail In South Africa 

It is something that every person fears – to be arrested by the police and locked up in the cells, whether for a short period or for an indefinite time.

However, one thing brings hope to such a person: the fact that they can apply for bail and that bail can be considered. Knowing the grounds for refusal in such matters will assist a person in moving forward with confidence.

Contact one of Burger Huyser Attorneys’ expert bail attorneys for assistance with your bail application today!

 

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE