What Criminal Bail is – And What it Isn’t | Legal Articles


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What Criminal Bail is – And What it Isn’t

There are a lot of misconceptions amongst many people with regards to bail, its essence, and proceedings to be specific. In this brief article we will unpack and clear up some of the issues with regards to criminal bails.

Many people are under the impression that the commencement of all criminal case proceedings must begin with an arrest, this is the first point we will deal with before we get to the dynamics of bails.

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Purpose of Bail in South Africa

According to Section 38 (1) of the criminal Procedure Act 51 of 1977 (as amended), arrest is but one of the ways of securing the attendance of an accused in Court. The other ways are Summons, written Notice to Appear or an Indictment.

It is therefore according to specific circumstances of each case on whether to effect arrest or summon an accused to appear in Court on a certain date to answer to the allegations. Therefore, not all situations require that an accused be arrested, but where there is reasonable belief that the accused may abscond or turn fugitive against the hand of justice.

That being the case, where an accused has been arrested and is in police custody, such accused must be brought for a formal appearance in Court within 48 hours (excluding weekends and public holidays). Here is where the dynamics of bail play and we wish to highlight these.

Right to Bail in South Africa

Firstly, bail is available for application to every arrested person, and it ought to be considered upon arrest. Depending on the seriousness of the offence, circumstances of the case and criminal profile of the accused, the police or the State Prosecutor may consent to bail of an accused in the holding cells before the first formal appearance in Court.

In terms of section 59 the accused may apply for police bail once arrested and charged, if the offence is not one provided under Part II or Part III of Schedule 2. These are less serious offences such as common assault or theft of goods of minimal value.

Under Section 59A, an authorised Prosecutor may consent to bail of an accused who is in custody if such offence is under Schedule 7.

These offences are a bit more serious than those under which the police may grant bail. Schedule 7 offences include theft, robbery and fraud that does not exceed R20 000, culpable homicide, assault GBH etc.

Bail Application South Africa

Bail for more serious offences under Schedule 5 and 6 may only be applied for under a formal application in Court within 48 hours of arrest. Depending on the criminal profile of the accused, interests of justice, any exceptional circumstances and the seriousness of the charge, the Prosecutor may oppose the granting of bail to the accused, with reasons.

This is where the accused needs to secure the assistance of capable attorneys to motivate for the granting of bail with or without conditions.

Secondly, being granted bail or not does not mean one is guilty or not in the case. Bail is only a form of security or assurance that the accused will attend Court proceedings until the matter is finalised, which may end up in a guilty or not guilty verdict. However, the factors below play a huge role on whether bail is granted or not;

  • Seriousness of the charges;
  • Whether accused is of fixed abode or not;
  • Any previous convictions;
  • Any pending cases;
  • Interests of justice and any exceptional circumstances;
  • Interests of the community;
  • Personal circumstances of the accused ;
  • Any other factors that the Court deems applicable.

Van Deventer & Van Deventer Incorporated – Criminal Law Attorneys in Cape Town and Johannesburg

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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