Bail in South African Law Explained: How It Works and Why It Matters

Bail is a fundamental aspect of criminal law that allows individuals accused of a crime to be temporarily released from custody, pending trial. It serves as a guarantee that the defendant will return to court for their hearings and final trial. Understanding the concept of bail is crucial for anyone who may be involved in a criminal case, whether directly or indirectly.

At Burger Huyser Attorneys, we believe it’s important to have a clear understanding of legal terms like bail, as they can greatly affect the outcome of a case.

What Does Bail Mean in Law?

Bail is a legal mechanism that allows a person accused of a crime to secure their release from jail while they await their court proceedings. The primary function of bail is to ensure that the accused appears at their scheduled court hearings. It acts as a financial pledge, where the accused or a third party offers money or property as collateral to guarantee their appearance in court.

In essence, bail is a way to balance the legal right of the accused to freedom while maintaining the integrity of the judicial process. If the accused fails to show up for their hearings, the bail can be forfeited, and a warrant may be issued for their arrest.

The Role of Bail in the Legal System

Bail is a critical part of the justice system as it ensures that the accused person is not unnecessarily held in detention before their trial. It provides an opportunity for individuals to continue their daily lives, gather resources for their defense, and consult with their legal team without being confined to jail.

At the same time, bail serves as a deterrent for individuals who might consider fleeing or evading justice. Since the accused has a financial stake in appearing at their court dates, the risk of forfeiting their bail acts as an incentive to comply with the judicial process.

Types of Bail in South Africa

In South Africa, there are several types of bail, each with its own set of conditions:

  • Police Bail

Under Section 59 of the Criminal Procedure Act, an arrested person may apply for bail at the police station within 48 hours of their arrest, before their first court appearance. This applies only if the offence does not fall under Part II or Part III of Schedule 2, meaning it is not considered serious. Examples of such offences include:

  • Theft under R2,500
  • Common assault
  • Possession of less than 115 grams of dagga
  • Exceeding the speed limit
  • Prosecutor Bail

In terms of Section 59A, the Director of Public Prosecutions (DPP) or an authorised prosecutor may grant bail before an accused’s first court appearance if they are in custody for a Schedule 7 offence. These offences are more serious than those eligible for police bail but still allow for prosecutorial discretion. Examples include:

  • Culpable homicide
  • Assault with intent to cause grievous bodily harm
  • Robbery
  • Theft and fraud (where the amount involved does not exceed R20,000)
  • Possession of drugs

For more serious offences, a formal bail application must be made in court. If bail has not been granted by the police or prosecutor, the accused must be brought to court within 48 hours of arrest.

  • Court Bail

If bail has not been granted at the police station or by a prosecutor, the accused can apply for bail at their first court appearance under Section 60 of the Criminal Procedure Act.

At the bail hearing:

  • The accused must disclose any past convictions, pending charges, or additional offences.
  • The prosecutor may oppose bail, stating reasons on record.
  • The court will consider various factors before deciding whether to grant bail.
  • The bail application may be postponed, but for no longer than seven days.

Each case is assessed individually, with the court weighing the seriousness of the offence, the likelihood of the accused appearing for trial, and any potential risks to public safety.

How is Bail Determined?

The determination of bail is not automatic and involves several factors. Courts take these elements into account to decide whether bail should be granted and, if so, at what amount.

1. The Seriousness of the Offense

The nature of the crime for which the accused has been charged plays a significant role in the bail decision. More serious offenses, such as murder or armed robbery, are less likely to result in bail being granted, or the bail amount may be higher. For lesser offenses, bail is more likely to be granted, and the amount may be more reasonable.

2. The Risk of Flight

One of the primary concerns for the court is whether the accused will return for their court proceedings. If there is a high risk of the accused fleeing, the court may deny bail or set a higher amount. Factors such as the accused’s criminal history, ties to the community, employment status, and financial resources are taken into account when determining the risk of flight.

3. Previous Criminal Record

An individual’s criminal history can also influence the decision. If the accused has a history of not appearing in court, being involved in serious offenses, or engaging in criminal activity while on bail, the court is less likely to grant bail or may impose stricter conditions.

The Bail Process: What Happens After Bail is Granted?

Once bail has been granted, there are still steps that must be followed to ensure the release of the accused:

1. Posting Bail

The accused, or a surety on their behalf, will need to post the required amount. For cash bail, this means paying the bail amount in full to the court. For surety bail, the surety will sign an agreement guaranteeing the amount. In cases where the accused is released on their own recognizance, no financial transaction is necessary.

2. Compliance with Bail Conditions

After being released on bail, the accused must comply with any conditions set by the court. These conditions could include restrictions on travel, regular check-ins with authorities, or a ban on contacting certain individuals. If the accused violates these conditions, bail may be revoked, and they could be arrested again.

3. Attending Court Hearings

The most important condition of bail is the accused’s obligation to attend all scheduled court hearings. If the accused fails to appear, the court can issue a bench warrant for their arrest, and the bail may be forfeited.

Navigating the complexities of bail can be overwhelming, especially during stressful legal proceedings. At Burger Huyser Attorneys, we specialise in criminal law and can assist you in understanding the bail process and how it affects your case. If you or someone you know is facing criminal charges, contact us today for expert legal advice and representation.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

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