Imagine for a moment that you find yourself confronted by police officers stating the following words: “You are under arrest. You have the right to remain silent. Anything you say or do can and will be used against you in a court of law…”

What would you do? In the event that you or your loved one is unexpectedly taken into custody, your first thoughts naturally go straight to securing your release from custody. 

Bail is governed by Chapter 9 of the Criminal Procedure Act 51 of 1977 (the CPA).

In our law any person who has been arrested must be brought before a court as soon as is reasonably possible and may not be detained for longer than 48 hours after arrest. 

A police official of or above the rank of non-commissioned officer may release an accused on “police” bail at a police station upon the accused paying a sum of money determined by such official, provided that the accused has been charged with any offence other than an offence referred to in Part II and Part III of Schedule 2 of the CPA.  

Section 59A of the CPA provides for certain instances where a prosecutor may authorise the release of an accused on bail, after consultation with the investigating officer. The prosecutor is usually on standby to attend to after-hours bail applications and to attend the police station in order to grant bail. 

Each magistrate’s court has the phone numbers of prosecutors designated to be on stand-by, and the phone numbers are usually available at police stations for “after hours” bail applications.  

By paying bail the accused is giving security to come to court for future hearings of his or her case, and agrees that if he or she does not return, the money paid as bail may be forfeited to the State.

Failure of the accused to appear in court, or to comply with any of the bail conditions would result in the cancellation of bail, forfeiture of the bail moneys to the State, and the re-arrest of the accused. 

However, where a person has been charged with an offence listed in Schedule 5 or 6 of the Act, which are offences of a serious nature, that person can only be released by a court following a formal application for bail.

Ordinary citizens often misunderstand the concept of bail, especially where the accused has been charged with an offence that provokes community outrage. 

Every accused person has the right to be presumed innocent until proven guilty in a fair trial and flowing from this every person who is arrested is entitled to seek their release on bail pending the final outcome of the main criminal trial.

The accused in such circumstances bears the burden of proof on a balance of probabilities that it will be in the interests of justice for him or her to be released on bail.

In respect of Schedule 6 offences, an accused must prove that exceptional circumstances exist which permit his or her release on bail.

The interests of justice do not permit the release of an accused from detention: 

• where there is likelihood that an accused will endanger the safety of the public or that of a particular person, or will commit another  offence; 

• where he or she is a flight risk; 

• where he or she will attempt to influence or intimidate witnesses or to conceal or destroy evidence; 

• where he or she will likely undermine or jeopardise the objectives or the proper functioning of the criminal justice system and the bail system; 

• where in exceptional circumstances it is likely that the release of the accused will disturb the public order or undermine the public peace or security. 

When considering whether or not bail must be granted in a particular case the court must consider the personal circumstances of the accused, the seriousness of the offence and the interests of justice.

It is because of the different facts of each bail application that some people would obtain bail on the same charge on which another person might be refused bail.

If you or a family member, friend or colleague are ever arrested it is important to ensure you secure the services of an attorney at the earliest opportunity to work towards your release – whether on warning, police or prosecutor bail and a formal bail application in court.