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Refused bail? Why?

Refused bail in South Africa

Some of the grounds on which bail can be refused

Arrest is a scary business. Even when someone does something they know to be illegal, they don’t expect to be arrested. Every criminal hopes to get away with the crime. If the arrest may be unlawful, it is even more frightening. But the one consolation for anyone in this situation is the hope of bail. Bail refers to “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court”. There may also be conditions imposed, for example the police may retain the passport of someone believed to be a flight risk, or the accused may be confined to their residence. But bail is not a universal right. Certain crimes and certain circumstances may cause a judge to deny a bail application. Let’s look at some of the grounds on which an accused may be refused bail.

Interest of justice

The Criminal Procedure Act provides for the denial of bail and the detention of the accused in custody if the interests of justice are better served by detaining the person. There are various grounds for this. We’ll look at each in turn, and explain it.

  1. Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence.

Bail can be refused if the court is satisfied that an accused may be likely to commit the crime they are charged with and might continue to perpetrate such crimes if released on bail.

  1. Where there is the likelihood that the accused, if released on bail, will attempt to evade trial.

The court will consider the accused’s family and occupational ties, assets and income and the severity of the crime, among other factors.

  1. Where there is the likelihood that the accused, if released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence.

This concern is quite complex, and the courts will consider all of the following:

    • the accused’s familiarity with the identity of witnesses and with the evidence they may hold
    • whether the witnesses have already made statements and agreed to testify
    • whether the investigation against the accused has already been completed
    • the relationship of the accused with witnesses and the extent to which they could be influenced or intimidated
    • how likely it is that communication between the accused and witnesses can be prohibited
    • whether the accused has access to evidence to be presented at their trial
  1. Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system.

The court will look at:

    • whether the accused knowingly supplied false information at the time of arrest or during bail proceedings
    • whether the accused is in custody on another charge or on parole
    • any previous failure to comply with bail conditions or any indication that they will not comply with any bail conditions
    • any other factor which in the opinion of the court should be taken into account
  1. Where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

This is not common but might apply in the case of a crime that is particularly heinous or socially abominable, such as the murder of a child. The court will consider:

    • whether the nature of the offence or the circumstances might induce a sense of shock or outrage in the community where the offence was committed
    • whether the shock or outrage of the community might lead to public disorder if the accused is released
    • whether the safety of the accused might be jeopardised by release
    • whether the sense of peace and security among the public will be undermined or jeopardised by the release of the accused
    • whether the release of the accused will undermine or jeopardise public confidence in the criminal justice system
    • any other factor which in the opinion of the court should be taken into account

Innocent until proven guilty

Our justice system is founded on the premise of presumed innocence, which is why we have a protocol for not depriving an accused of their freedom until found guilty (i.e. bail). Therefore, in deciding to grant or refuse bail, the court is cognisant of the impact of its decision on both the accused and society. The court must weigh the interests of justice against the right of an accused to personal freedom and the prejudice the accused will suffer if bail is refused.

The court must also take the following into account:

    • the period the accused has already been in custody since the arrest
    • the probable period of detention until the conclusion of the trial if the accused is not released on bail
    • the reason for any delay in the conclusion of the trial and any fault on the part of the accused with regard to such delay
    • any financial loss the accused may suffer owing to the detention
    • any impediment to the preparation of the accused’s defence or any delay in obtaining legal representation the detention might cause
    • the health of the accused
    • any other factor the court believes should be taken into account

Furthermore, the court must apply a proportionality test — the likely harm must be weighed against the deprivation of liberty of the accused.

We’re here to help

Cape Town law firm SD Law is an expert in criminal defence, including DUI and possession of drugs. We are experienced in the bail application process, with a reputation for handling after-hours bail. Speak to us to find out more or about any other aspect of criminal law. Call Simon on 086 099 5146 or email

For urgent help call 076 116 0623.


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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.