If you ever need bail, you need to know the process
The popularity of TV programmes based on law and order has made us all armchair experts in police procedure. But do you really understand how bail works in South Africa? We hope you never have first-hand experience of the justice system. But if you or someone you know is arrested, it’s important to understand how bail works.
What is bail?
Bail is a sum of money paid to the court when someone is arrested that allows them to be released from custody until their trial. Being released on bail does not mean the police or the court consider you are innocent. Bail is a form of collateral. In our law, everyone is assumed not guilty until they are found guilty by a court of law, and no one may be detained without trial. However, it is normal to hold an accused in custody until the court case. If bail is paid, you may return home until the trial. But if you fail to show up in court, or if you break any of the bail conditions, the bail may be forfeited. Otherwise, bail is repaid to the accused following the trial, whatever the verdict.
Is everyone eligible for bail?
By law, everyone has the right to apply for bail. In practice, it is not always granted. The granting of bail – and the amount due to be paid – will depend on the seriousness of the offence (the “schedule”) and other factors.
Types of bail
There are three types of bail, and these relate to the schedule of offence.
- Police bail. If the offence is not serious (Schedule 2, Part 1), for example, theft under R2500, common assault, or exceeding the speed limit, you can apply for bail at the police station when you are arrested, and it must be done within 48 hours of arrest.
- Prosecutor bail. If you commit a more serious crime, under Schedule 7, you must apply for prosecutor bail. Examples of a Schedule 7 offence include culpable homicide, grievous bodily harm, robbery, and theft, among others. You can also apply for prosecutor bail at the police station but the Director of Public Prosecution (DPP) or a prosecutor authorised by the DPP must authorise release on bail. If bail has not been granted by the police or DPP, the accused must be brought to court within 48 hours of arrest.
- Court bail. For very serious offences – Schedule 5 or 6 – you must make a formal application to the court for bail. This is done at the first court appearance or any time during the court proceedings. You can either do this by affidavit or by calling witnesses. You must disclose any previous convictions or pending cases. The prosecutor can oppose bail, and the court will rule based on the evidence.
What will the court consider?
With police and prosecutor bail, it’s up to the police or prosecutor to prove you shouldn’t be granted bail. However, with court bail, the onus is on you as the accused to persuade the court you are worthy of being released. You must convince the court of the following:
- You are not a flight risk (i.e., you won’t run away and will attend all court hearings)
- You are not a danger to other people or to public safety
- You will not commit further crimes
- You will not intimidate witnesses or destroy evidence
- You will not undermine public order or public security
According to the Department of Justice, the accused must “convince the court that it is not only in the interest of justice, but there are exceptional circumstances that exist to assist him to qualify to be released as such.” Therefore, not all applications for court bail are approved.
Cost of bail
There is no fixed menu of bail fees. Bail will depend on the seriousness of the offence and is determined at the magistrate’s discretion. Bail can be hundreds of rand or hundreds of thousands of rand. Oscar Pistorius was released on R1m bail. If you can’t afford the amount set, you can request a reduction, but if you are still unable to pay, you will be remanded in custody until your trial. Bail is designed to be a strong deterrent to flight and a strong incentive to return to court, as your bail money is repaid to you, even if you are found guilty. A token amount would not be sufficient motivation to comply. Ultimately, bail is a tool to restrict your freedom while the police collect and process evidence regarding the case against you.
For further information
Cape Town attorneys SD Law & Associates are experts in criminal defence and bail. If you are arrested, contact criminal defence lawyer Simon Dippenaar on 076 116 0623. Save the number in your phone…better safe than sorry.