Most people are familiar with the concept: An arrested person is released from custody by the police, or an accused person is released by the court on condition that he returns to court to stand trial.
Few people, however, understand the true purpose of bail or how the process works.
What is the purpose of bail?
The Constitution of the Republic of South Africa and the Criminal Procedure Act (Act 51 of 1977) (“the Act”) determines the bail process.
There is a misconception among some people regarding the approach that should be taken when deciding to grant or refuse bail.
Many believe that (certain) accused persons should be denied bail, due to what they have (allegedly) done, and should remain in custody as punishment.
This approach is wrong. Bail proceedings are not intended to punish the accused, who is presumed innocent until proven guilty. Guilt or innocence (and punishment) will only be determined during a trial.
The Constitution guarantees the right to freedom of movement and freedom of the person, and the Act states that accused persons are entitled to be released on bail, when it is in the interest of justice.
Who can grant me bail?
There are three types of bail proceedings:
• Bail granted by the police before appearance in court. This is limited to offences which are mostly of a trivial nature. (They are offences not listed in Part Two or Part Three of Schedule Two of the Act);
• Bail granted by a representative of the National Prosecuting Authority before appearance in court. After consulting the police official investigating the matter, such representative (usually a public prosecutor) may grant bail. This is applies to offences listed in Schedule Seven of the Act (generally “moderately serious”);
• Bail granted by court. This applies to serious offences (or situations where the police and / or prosecutor were not willing to grant you bail). Courts may in principle grant bail on any charge, may refuse bail, withdraw bail or amend bail conditions. If refused, it is possible to appeal or, in limited instances, to bring a new application.
What is the process?
• After arrest, the police will compile certain statements and open a docket but an investigation might already have started prior to the arrest. The police officials dealing with the matter must now exercise their discretion when considering bail.
If granted, an amount to be deposited will be determined and you will be advised when you must appear in court. The police may not determine bail conditions.
• For Schedule Seven offences, a prosecutor must be contacted in order to consider the matter. The prosecutor may grant bail and impose certain conditions. You will be advised when to attend court.
• If the police (or prosecutor) could not or was not willing to grant bail, you must be taken to court no later than 48 hours after arrest. If the 48 hours expire after normal court hours, you must be taken to court before the end of the first following court day. You must bring an application to the court to grant you bail.
How is bail decided?
The Act requires that the court must investigate the following, in order to determine whether the accused’s release is in the interest of justice:
• Will the accused endanger the safety of the public?
• Will the accused commit schedule 1 offences?
• Will the accused evade his trial?
• Will the accused attempt to influence or intimidate witnesses or conceal / destroy evidence?
• Will the accused’s release jeopardize or undermine the proper functioning of the criminal justice system?
• Will the accused’s release disturb the public order or undermine public peace or security?
The court will consider many factors, including:
- Whether the alleged offence involved violence and whether the accused is inclined to violence.
- The accused’s family, work, and community ties, and what assets and travel documents he owns (in order to determine whether he is a flight risk).
- The nature and seriousness of the charge.
- The strength of the case against the accused.
- Any other relevant factor.
If bail is granted, the court will determine an amount to be deposited, which will be refunded to you when the matter is finalised provided you attended court and complied with bail conditions.
What are the challenges and risks in bail applications?
If charged with a serious offence ( offences listed in Schedule Five and Six of the Act), the onus will be on the accused to convince the court that the granting of bail is in the interest of justice. The accused will have to present evidence, either in the form of an affidavit, or by calling witnesses.
The State may oppose any bail application and what you say during the proceedings, may be used against you at a later trial. If your bail is refused, you may spend a long time in custody before your matter is finalised or until an appeal or second application succeeds. It is vital that you secure the assistance of an attorney as soon as possible after arrest.
Article written by Francois de Kock of Juan Kotze Attorneys who may be reached on 011 892 1019, francois@therescueshop.co.za or juan@therescueshop.co.za.
