Bail – Is it a Sail or Nail? | Legal Articles


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Bail – Is it a Sail or Nail?

In as much as being arrested is not a foregone conclusion of guilt or innocence, bail being granted, or its denial is not proof that one is guilty or not.

The question of guilt or not guilty is the determination of the Court upon the finalisation of the case, if other avenues e.g ADR, withdrawal of charges, are not opted for.

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Bail in South Africa

What then does it point to, being granted bail, or not?

Bail is essentially a form of assurance or security that the accused will attend Court proceedings until the matter is finalised. Being granted bail means there are circumstances which are in favour of the matter being finalised while the accused is not held in remand detention. Inversely, being denied bail also means there are odds against the release of the accused on bail whilst the matter is still under proceedings in Court.

So what factors are at play, in the determination of bail?  

  • Seriousness of the charges;
  • Whether the accused is of fixed abode or not;
  • Ability to come up with the bail amount;
  • Any previous convictions;
  • Any pending cases;
  • Interests of justice and any exceptional circumstances;
  • Interests of the community;
  • Personal circumstances of the accused ;
  • Any other relevant factors;

Grounds for Refusing Bail in South Africa

Since bail is a mechanism to assure the Court that the accused will attend court proceedings until finalisation, it follows that where there are reasonable indications that the accused may abscond or turn fugitive, bail may be denied.

Therefore, it will be under consideration whether the accused is of fixed abode or not. An accused who is not known where he is ordinarily or permanently resided presents huge hesitance to be granted bail as chances of absconding court proceedings are reasonably high. The police may not be able to locate the accused for attendance to court.

Likewise, an accused that has several previous convictions lessens their chance of being granted bail as it indicates propensity of habitual criminal activity.

Having pending cases before other Courts at the time when a bail application is made may also persuade the Court to view the accused in bad light.

However, our astute Criminal Department attorneys know too well that having pending cases does little to prove the accused’s propensity to commit crime and therefore should not be weighed in too much by the Court in its decision of whether to grant bail or not.

This is mainly because the accused is innocent until proven guilty and therefore one’s candidacy for bail may not be discounted because of pending cases that have not been proven yet.

The Court may grant bail with or without conditions, and we strongly advise the accused to adhere to these conditions without fail unless there are exceptional reasons not to, whose evidence must be presented before Court.

Violating Bail in South Africa

If the accused violates bail conditions it may result in the bail being revoked, bail money forfeited by the State and having the matter finalised while the accused is in custody.

Should the accused interfere with witnesses or fail to attend Court proceedings without just cause, bail may be revoked and forfeited as well.

However, whether found guilty or not the bail amount is refundable if the accused attended all Court proceedings and did not violate bail conditions or interfere with witnesses.

Being granted bail is not a sail through in the case.

Being denied bail is not a nail on the coffin of the case.

Van Deventer & Van Deventer Incorporated – Criminal Law Attorneys in South Africa

Our criminal law department handles cases with diligence, vigor, carefulness, and experience. Criminal consequences of the justice system may be dire, and we take that in serious light.

We fight for the rights and best interests of our clients.


Contact us for comprehensive and memorable assistance.


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