So what is bail, and what does the bail application procedure in South Africa entail? The South African constitution makes provisions for those accused of a crime to have the right to bail, regardless of their crimes. Bail applications are a sensitive procedure, so you must understand the process to ensure that you do not make a wrong step, as this can affect whether you get bail.
Bail is an amount the accused will pay to ensure that they are temporarily released if arrested for an alleged criminal offence. The three types of bail applications include Police Bail, Prosecutor Bail, and Bail Applications in Court. The court will take into consideration several factors before granting bail.
Getting arrested for any crime, whether small or life-changing, is a scary process and the last thing you want to do is spend a prolonged period in a jail cell. Most people in this situation will want to apply for bail to ensure they get temporarily released as soon as possible. Before embarking on the bail application process, you should be aware of some vital information to ensure that you complete the process correctly.
Bail: What Is It And How Does It Work?
One of the great things about the South African constitution is that anyone arrested for a crime is presumed innocent until proven guilty. If you are unfortunate enough to get arrested, you will typically be detained in a prison or jail cell until the end of your trial; this is a precautionary matter to ensure that you attend all future court proceedings associated with your case.
If you do not wish to remain behind bars for the duration of your trial, you may apply for bail. Bail is the sum you will pay to ensure your temporary release from jail after being arrested for a criminal offence. The purpose of paying bail is so that the courts can ensure that you will attend all future court proceedings.
If you are granted bail, it does not indicate your innocence or guilt. It also does not mean that the State has withdrawn the case against you. You will still be required to be present in court on the day of your trial and any subsequent trial days after that.
Once your trial is concluded, your bail money will be paid back to you in full, regardless of the outcome. If you violate your bail conditions at any stage before the conclusion of your trial, you will forfeit your bail money to the State, and a warrant will be issued for your arrest.
Ensure that you receive a receipt for your bail payment, as you will use it for proof of payment to get your bail money returned.
What Are The Three Different Types Of Bail Applications?
Typically there are three different forms of bail applications:
Police bail is subject to Section 59 of the Criminal Procedure Act 51 of 1977 (the Act), which states that anyone arrested for a crime may apply for bail at the police station. You must apply for this bail within 48 hours of your arrest before attending your first court appearance.
Remember that this type of bail application will only be granted if the crime is minor, such as common assault or theft under R2500, or any other offence not included in Part II or Part III of Schedule 2.
In some cases, the Investigating Officer or the arresting Police Officer may oppose the bail. If this is the case, it may be because the arresting offence is not minor, the detainee is not a South African citizen, or they have previous convictions against them.
This type of bail application typically follows this process:
- The Police will arrest you;
- You will be informed of your rights by the arresting police officer;
- You will get transferred to the nearest police station;
- You will be allowed to call someone;
- You have the option to use your phone call to phone a criminal lawyer or someone who can contact a criminal lawyer on your behalf;
- The criminal lawyer will arrive at the police station and start the bail application process;
- The criminal lawyer will negotiate the bail price with the arresting Police Officer or the Investigating Officer.
Subject to conditions set out in Section 59A of the Act, the Director of Public Prosecution (DPP) or a prosecutor authorized in writing by the DPP may allow you to be released on bail before your first court appearance. Only if you have been charged with a Schedule 7 offence and after consultation with the arresting Officer or Investigating Officer.
Schedule 7 offences include but are not limited to:
- Fraud or theft not exceeding R20000
- Drug possession
- Culpable homicide
- Assault with intent to do grievous bodily harm
If you did not get Police Bail, you would need to be brought in front of the court within 48 hours of your arrest to be eligible for Prosecutor Bail.
Bail Applications In Court
In terms of Section 60 of the Act, if you have been charged with a Schedule 5 or 6 offence, you will have to make a formal bail application before the court. There are two ways to make this bail application. The first involves applying for bail with an affidavit and the second entails calling the accused (yourself) or witnesses to the stand.
Schedule 5 offences include but are not limited to:
- Attempted murder
- Illegal dealing or smuggling of firearms
- Indecent assault
- Drug-related crimes
- Fraud, theft, or forgery to the value of R500000
Schedule 6 offences include but are not limited to:
- Planned or premeditated murder;
- Rape when committed in circumstances where the victim was raped multiple times.
During the application, you or your lawyer must inform the court if you have any previous convictions or pending cases. It is a criminal offence not to disclose this information to the court. If the prosecutor feels the need to oppose the bail, they may state why they think it should not be granted. The court will then consider all of the information before making its decision.
Before being granted bail, you will need to convince the presiding judge of the following:
- That you are not a danger to other people;
- That you will not run away;
- That you will attend all of your court hearings;
- You will not intimidate any witnesses in the case;
- That you will not commit any further crimes.
The court may postpone the application for up to seven days. If the court grants bail, you must pay the required amount to a court clerk.
Regardless of the crime or which type of bail application you apply for, it would be best if you used the services of a criminal lawyer to negotiate your bail application on your behalf. Only an experienced criminal lawyer can handle this tricky situation properly to ensure the best outcome for you. The best result includes ensuring you are released from jail or prison as quickly as possible and with the lowest bail amount.
Suppose you have questions regarding bail applications or require an attorney’s services to negotiate bail on your behalf. In that case, our Burnett Attorneys & Notaries team is available to help you in your endeavor. We will strive to ensure your constitutional rights are upheld and that there are no unreasonable delays during the States investigations against you. Please don’t hesitate to contact us for any further information.