Bail Application – important things to know

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BAIL APPLICATION OF THE ACCUSED IN COURT

Section 60 (1) (a) of the Criminal Procedure Act provides that an accused who is in custody in respect of an offence shall be entitled submit a bail application to be released on bail at any stage preceding his or her conviction in respect of such offence if the court is satisfied that the interests of justice so permits.

 

WHAT IS BAIL?

Bail is the amount of money which is paid by the accused who is charged with an offence in terms of South African law.  The amount is payable to the court or the police and is refundable.  Once bail is granted, the accused may then be released to go home but return on a set court date.  If the accused refuses to return on the court date or threatens the life of the victim and does not comply with the conditions of his or her bail, the money, which was paid for bail, will not be refunded.

Bail Application - Handcuffs The purpose of bail is to grant a person the opportunity not to be incarcerated until their trial commences.
Furthermore, bail ensures that such persons return to court for trial. A person can apply for bail at any stage of the proceedings when he or she is brought before the court within 48 hours after being charged.
Paying bail does not mean the person is guilty of the offence he/she has been charged with nor is it a form of admission of guilt. By paying bail, the person is merely making a promise that he/she will return to court for a hearing on the date set down by the court.

 

POLICE BAIL

Bail Application - Midrand police station A police official at the police station may grant police bail. Section 59 of the Criminal Procedure Act 51 of 1977  States that:  An accused who is in custody in respect of any offence, other than an offence referred to in Schedule 2 (part I and part II) may before his or her first appearance in a lower court, submit a bail application, to be released on bail granted by any police official or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.
The police official granting the bail application is bound to provide the accused a completed receipt of the sum of money paid for bail, including the place, date and time of their trial.  Furthermore, the police officer must also provide a duplicate original of the receipt to the clerk of the court, which has jurisdiction.
A police official may grant a bail application to an accused of minor offences (offences not serious in nature) and may also grant a bail application with the permission of the Director of Public Prosecutions for offences that are listed under schedule 7 in terms of the Criminal Procedure Act 51 of 1977.

What happens if bail is granted at court?

The court may: 

  • release the accused on bail at any stage before his/her conviction, provided that the interests of justice permit the release of an accused or that there are exceptional circumstances that exist if the criminal offence is serious
  • set an amount to be paid for bail or release the accused on warning
  • impose certain conditions on the release

If the court decides to set an amount for bail, it should be paid to the clerk of the court and the person who paid the amount must be provided with a receipt

Under what circumstances can bail be denied?

The court will not release the accused on bail where there is a chance that:

  • the release of the accused will endanger the safety of the public or any particular person
  • the accused will avoid his/her trial
  • the accused will attempt to influence or intimidate witnesses, or cover and/or destroy evidence
  • the accused will undermine or endanger the functioning of the justice system including the bail system
  • the accused will disturb public order or undermine public peace and security

What is the significance of a person being charged with a schedule 6 offence at the bail hearing stage?

Charging a person with a Schedule 6 offence places more burden on the accused to convince the court that it is not only in the interest of justice for him or her to be released on bail, but there are exceptional circumstances that exist to assist him/her to qualify to be released.

This places the burden of obligation on the accused to be forthcoming with information relating to the circumstances of the commission of the crime, which can be useful to the State during the trial. All information presented to the court at the bail hearing stage can be, and is often used, during the trial.

What prolongs the bail proceedings?

The duration of bail will depend on the following:

  1. the extent of the charges the accused is facing
  2. cross-examination of witnesses
  3. the number of the accused
  4. number of counts that the accused is charged with

How is flight risk determined?

The court would normally look into whether the accused has a passport or relatives outside the country and if the accused has means to flee. If the accused has been regarded as a flight risk, the accused may not be granted bail.

Below is a list of the schedule of offences in terms of the Criminal Procedure Act 51 of 1977.

Please note that the schedule of offences determines the type of bail application that can be made, bail granted and in which instances bail would be denied.  This information has been included in the article above.

Schedule 1 Offences

TreasonSeditionPublic ViolenceMurderCulpable Homicide
Sexual AssaultHuman  sexual traffickingBestialityRobberyKidnapping
Malicious injury to PropertyArsonTheftBreaking in/unlawfully entering into premisesFraud
Forgery or uttering a forged documentAny conspiracy of incitementRapeChild StealingReceiving stolen goods

Schedule 2 Offences Part 1

Illicit possession  or supply of dependence producing drugsIllicit dealing in or possession of precious metals or precious stonesBreaking of entering premises with the intent to commit an offenceTheft under common law or statutory provision

Schedule 2 Offences Part 2

TreasonSeditionRapeMurder
ArsonAssault when dangerous wound is inflictedTheft or fraud of property which amounts exceeds
R2 500.00
Any conspiracy or incitement

Schedule 2 Offences Part 3

Public ViolenceArsonKidnapping/Murder
Child StealingRobberyTreason

Schedule 3 Offences

Driving a vehicle at a speed exceeding the prescribed limitDriving a vehicle which does not bear prescribed lightsLeaving a vehicle at a place where it may not be left
Driving a vehicle which is defectiveNot having a valid driving license

Schedule 4 Offences

These have been repealed

Schedule 5 Offences

TreasonMurderAttempted murder involving grievous bodily harm (GBH)Rape
Any trafficking related offence by a commercial carrierDrug producing substances worth more than

R50 000.00

Any offence in dealing with smuggling ammunitions or explosivesAny offence in contravention of Section 36 of the arms and ammunitions act
Any offence in relation to extortion, fraud, forgery, theft as contemplated in the prevention and combatting of corrupt activities act involving amounts exceeding

R50 000.00

Sexual AssaultOffences in relation to Schedule 1 Offences where the accused has been previously convicted of such an offenceAny offence which is referred to in the protection of constitutional democracy against terrorist and/or related activities

Schedule 6 Offences

Planned or premeditated murderMurder of a law enforcement officer performing his/her duties whether on duty or notDeath of a victim caused by the accused committing or attempting to commit rape, robbery
Trafficking in persons for sexual purposesRobbery involving the use of firearmsAny offence in relation to Schedule 5 where the accused has previously been convicted of the offence

Schedule 7 Offences

Public ViolenceCulpable HomicideMalicious damage to propertyArson
AssaultRobbery of property not exceeding
R20 000.00
Theft of property not exceeding
R20 000.00
Any conspiracy or incitement

These are all serious offences and legal costs to defend many of the offences could run into hundreds of thousands of rands.  Having a Yambu Legal Protection policy means that you will have access to a lawyer 24/7 for just R139.00 per month.  Make sure you have this legal protection by applying online at www.yambu.co.za

References: 

http://www.dutoitattorneys.com/legal-services/criminal-law1/after-hours-bail

http://www.vukuzenzele.gov.za/understanding-bail-process

http://www.justice.gov.za/faq/faq-bail.html

Criminal Procedure Act 51 of 1997

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