THE BEST GUIDE TO NAVIGATE BAIL APPLICATIONS IN SOUTH AFRICA

Written by: Nash Ricky Mogale
31 December 2023

INTRODUCTION 

In Acheson 1991(2) SA 805 (Nm), Mahomed A J stated the following:

“An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in court. The court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice.”

In the context of South African criminal law, it is essential for individuals facing criminal accusations to comprehend the complexities associated with bail applications. The South African constitution guarantees the right to bring a bail application, affording accused individuals the opportunity for temporary release. Nevertheless, the process is intricate, encompassing diverse forms of bail applications and factors that can substantially influence the final decision. Let’s explore the intricacies of bail applications in South Africa to understand this vital legal process comprehensively.

WHAT IS A BAIL APPLICATION?

In any legal proceeding involving the arrest of an individual, it is essential to note that the presumption of innocence is maintained until proven guilty by the court. According to our legal system, no person can be held in custody without undergoing a trial. Typically, when an accused person is apprehended, they are housed in a prison or police cell until the conclusion of the trial, ensuring their presence during court proceedings.

If the accused prefers not to be incarcerated while awaiting trial, they can petition the court for release either on a warning, with certain conditions, or on bail, which may or may not have associated conditions. Bail involves a monetary amount paid to either the court or the police. The likelihood of being granted bail is higher if the accused is not deemed a flight risk and can be easily located by law enforcement agencies. The presiding officer often imposes specific bail conditions to which the accused must adhere.

WHAT ARE THE THREE DIFFERENT TYPES OF BAIL APPLICATIONS IN SOUTH AFRICA?

  1. POLICE BAIL:

WHAT IS POLICE BAIL?

Governed by Section 59 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as “CPA”), Police Bail is an option for individuals apprehended for minor offences. This legal provision allows for a temporary release from custody, provided certain conditions are met.

The procedural steps involved in obtaining Police Bail encompass several vital stages. Following the arrest, the accused is informed of their rights, setting the stage for due process. Subsequently, the individual is transferred to a police station, where they are allowed to make a phone call.

Initiating the bail application process is typically the role of a criminal lawyer, who navigates the legal intricacies on behalf of the accused. This professional plays a pivotal role in ensuring that all necessary documentation is prepared and presented in accordance with the relevant legal framework.

WHAT IS THE PROCEDURE FOR POLICE BAIL?

To avail of Police Bail, one must submit an application within 48 hours of the arrest preceding the initial court appearance at the Police Station. This timeframe underscores the swift nature of the process, ensuring that individuals are not unduly held in custody for minor transgressions.

WHAT OFFENCES QUALIFY FOR POLICE BAIL?

Police Bail typically applies to relatively minor crimes, such as common assault or theft involving amounts under R2,500.00. This restriction ensures that the provision is reserved for offences that are considered less severe in nature.

  1. PROSECUTORIAL BAIL

WHAT IS PROSECUTORIAL BAIL?

Regulated by Section 59A of the Act, Prosecutor Bail represents an alternative avenue for temporary release from custody, with the authority to grant it vested in the Director of Public Prosecution (hereinafter referred to as “DPP”) or an authorised prosecutor. This legal provision is distinct from Police Bail and is specifically designed for cases involving more serious offences.

Prosecutor Bail is exclusively applicable to Schedule 7 offences, which encompass a range of substantial crimes, including but not limited to fraud, drug possession, robbery, assault, culpable homicide, and assault with intent to cause grievous bodily harm. The scope of eligible offences highlights the gravity of cases for which Prosecutor Bail is considered.

In circumstances where Police Bail is not granted, the accused individual must appear in court within 48 hours to be eligible for Prosecutor Bail. This time constraint emphasises the expedited nature of the legal process for serious offences, ensuring that individuals are promptly allowed to seek bail from the prosecutor.

The decision to grant Prosecutor Bail involves carefully evaluating the specific circumstances surrounding the case and the nature of the alleged offence. The DPP or an authorised prosecutor must weigh factors such as flight risk, potential harm to the community, and the strength of the evidence against the accused before determining bail.

WHAT OFFENCES ARE CONSIDERED SCHEDULE 7 OFFENCES THAT MAY QUALIFY FOR PROSECUTORIAL BAIL:

  • Public violence;
  • Culpable homicide;
  • Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007;
  • Assault involving the infliction of grievous bodily harm, where there are no elements of a domestic relationship;
  • Housebreaking with intent to commit an offence;
  • Malicious injury to property;
  • Robbery, other than a robbery with aggravating circumstances, if the amount involved in the offence does not exceed R20 000,00;
  • Theft and any offence referred to in section 264 (1) (a), (b) and (c) if the amount involved in the offence does not exceed R20 000,00;
  • Any offence in terms of any law relating to the illicit possession of dependence-producing drugs;
  • Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000,00;
  • Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
  1. BAIL APPLICATION IN COURT:

In accordance with the CPA under Section 50(6)(c): Schedule 6, the DPP or an authorised Public Prosecutor holds the discretion to issue a written directive stipulating that a specific bail application be addressed in the regional court if deemed expedient or necessary for the administration of justice.

Moreover, under Section 50(6)(d) of the CPA, the court possesses the authority to adjourn bail proceedings for a maximum period of seven days at a time, contingent upon the Prosecutor’s confirmation that the matter has been referred to the DPP. This referral is made to obtain written confirmation from the DPP regarding the intention to charge the accused with a schedule 5 or 6 offence. The related provision in Section 60(11A)(a) of the CPA emphasises that the DPP retains the right to confirm in writing, at any point before the accused enters a plea, the intent to charge the accused with a schedule 5 or 6 offence.

Section 60 of the Act stipulates that individuals facing Schedule 5 or 6 offences must apply for bail in court. Schedule 5 offences encompass grave crimes such as murder, attempted murder, and drug-related offences, while Schedule 6 offences involve acts that are planned or premeditated.

For offences falling under Schedule 5, though not applicable to Schedule 6, the court is obligated to decree the detention of the accused in custody until lawful resolution unless the accused, having been reasonably provided with an opportunity, presents evidence that persuades the court of the permissibility of their release in the interests of justice. This provision is stipulated in Section 60(11)(b), underscoring the necessity for the accused to furnish compelling evidence that establishes a connection between their release and the broader considerations of justice.

In cases involving Schedule 6 offences, the court is mandated to direct the detention of the accused in custody until their legal proceedings are concluded unless the accused, having been afforded a fair chance to do so, presents evidence that convinces the court of the existence of exceptional circumstances. This demonstration of exceptional circumstances must align with the interests of justice, thereby allowing the court to consider the release of the accused. This provision is outlined in Section 60(11)(a) of the CPA, emphasising the significance of compelling evidence and a clear nexus between the exceptional circumstances and the broader pursuit of justice to warrant the release of the accused from custody.

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

After the conviction of a Schedule 5 offence, pending sentencing, the court’s responsibility extends to assessing the possibility of extending bail, a process guided by the stipulations of Section 58 of the CPA. In situations where Schedule 6 does not apply, the court is obliged to order the continued detention of the accused until the legal proceedings reach a conclusion. Despite being given a fair opportunity, the accused retains the option to present evidence aligning with the conditions outlined in Section 60(11)(b). This evidence should convincingly demonstrate to the court that, in the interests of justice, the release of the accused is justified, incorporating a nuanced evaluation of factors extending beyond the conviction itself.

In the aftermath of a Schedule 6 conviction, the court evaluates the suitability of extending bail while adhering to the directives specified in Section 58 of the CPA. For Schedule 6 offences, the court is mandated to continue detaining the accused until the legal proceedings are lawfully resolved. However, the accused, having been granted a reasonable opportunity, has the avenue to present evidence that persuades the court of the existence of exceptional circumstances, as delineated in Section 60(11)(a). This evidence must convincingly demonstrate that such circumstances are in the interests of justice, thereby justifying the potential release of the accused.

WHAT IS THE PROCEDURE TO BRING A BAIL APPLICATION IN COURT?

The court application process for bail in such cases can take two forms: it can either be initiated through the submission of an affidavit or by calling witnesses to testify on behalf of the accused. In either scenario, a comprehensive presentation of the case is necessary.

During the bail application process, the accused has the option to provide oral evidence; however, it is generally discouraged due to the potential exposure to cross-examination and the scrutiny of the case’s merits. According to Section 60 (11B)(c) and (d), the court is obligated to inform the accused that the bail proceedings are being recorded, and any statements made under oath are admissible at trial and can be used against them. Additionally, the accused should be made aware that providing false evidence is an offence punishable by a fine or up to 2 years imprisonment. This ensures transparency in the legal proceedings and underscores the importance of truthful testimony during the bail application.

DOES THE APPROVAL OF BAIL SIGNIFY THE ANTICIPATED RESULT OF THE CASE?

No, granting of bail shouldn’t be considered a sign that the state has a strong case against the accused. Moreover, the approval of bail doesn’t suggest that the accused is cleared of charges or that the case has been withdrawn. Even with bail granted, the accused must still appear in court when a trial date is scheduled.

The granting of bail simply indicates that the court believes the accused will participate in the trial, posing no risk of fleeing or endangering the community.

CONCLUSION

In conclusion, South Africa’s bail application process reflects a delicate balance between individual liberties and the demands of justice.

From Police Bail for minor offences to Prosecutor Bail for serious crimes and the formal court process for Schedule 5 and 6 offences, the legal journey underscores the presumption of innocence until proven guilty. The approval of bail does not prejudge the case but signals a belief in the accused’s commitment to trial participation without posing a risk. This nuanced understanding is crucial in navigating the complexities of South African criminal law.

If you are ever arrested, you will need to speak to one of our experienced criminal defence attorneys at Burger Huyser Attorneys. It is highly advisable to appoint a criminal law specialist with adequate knowledge of criminal law backed with sufficient experience in courtroom procedures and criminal investigation who can legally advise you. Choose one of our criminal law experts at Burger Huyser Attorneys to defend you.

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