Introduction.
It is the festive season, and more people are in celebration mode. Law enforcement personnel are also on high alert and are conducting roadblocks. So, what happens when you run into an unexpected legal problem that results in your arrest and detention? Here are options available to you.
Overview
This article serves to give guidance on the different forms of bail applications the South African Justice System offers in terms of the Criminal Procedure Act 51 of 1977 (CPA). An accused person may be eligible for bail after being arrested.
Police Bail
Police bail is defined as bail granted by the police at the Police Station where a person is detained. The arrested person or related parties must apply for this form of bail within 48 hours of the arrest and before the accused appears in Court.
This type of bail application may be granted by any police official (bearing a rank of inspector or higher) and applies to minor offences, including but not limited to theft not exceeding the value of R2500, drunken driving, exceeding the speed limit, common assault, and possession of dagga weighing less than 115 grams.
It does not apply for serious offences that are listed in the schedule of offences in terms of the CPA which include but are not limited to rape, murder, and robbery with aggravating circumstances.
Prosecutor Bail
Prosecutor bail is bail granted by the Director of Public Prosecutions (DPP) or a prosecutor authorized by the DPP. Bail may be granted upon application to the DPP or authorized prosecutor within 48 hours of the arrest of the accused and before the accused appears in Court.
This type of bail application applies for slightly more serious offences listed in schedule 7 of the schedule of offences in the CPA, which include but are not limited to assault with intent to cause grievous bodily harm, robbery, and fraud where the amount involved does not exceed R20 000.00.
If bail has not been granted by either the police of the prosecutor within 48 hours of arrest due to the seriousness of the offence, the accused person must be brought before Court for bail consideration within 48 hours from the time of arrest.
Bail Applications in Court
A formal bail application is an application for bail that is done in Court. It is brought forward when an accused person is facing a schedule 5 or 6 offence which means that the accused bears the onus to prove (on a balance of probabilities) that the interest of justice permits for their release on bail (Schedule 5) or that there are exceptional circumstances that warrant their release on bail (Schedule 6).
This type of bail application can only be done in court in one of two ways. The first is by deposing to an affidavit or by leading oral evidence. The prosecutor may or may not be opposed to granting bail to the accused. However, in both cases, the onus to begin and the burden of proof rests solely on the accused. Likewise, the decision to grant or refuse bail rests solely on the presiding officer.
The Court, in granting or refusing this type of bail application, rests on various factors that it needs to consider. The Court needs to be satisfied by the evidence brought before it that the accused (if granted bail) will not do any of the following:
- Endanger their own safety or that of the public or any other person;
- Avoid trial;
- Attempt to influence or intimidate witnesses or conceal or destroy evidence;
- Undermine or endanger the functions of the justice system or the bail system; and/or
- Will not disturb the public order or undermine the public peace and security.
If the presiding officer is of the view that the accused person (if granted bail) will violate the above factors, the Court is likely to refuse bail. If bail is refused, you can either bring an application for bail based on new facts (if any apply) or appeal the decision of the presiding officer to refuse bail.
An accused person applying for bail must note that anything they say or use in the above applications may be used against them during trial.
All the above may seem easy, however we advise that any accused person seek assistance from a legal practitioner for all the bail applications explained herein as the necessary expertise required for a successful application of bail needs an attorney to be present.
Summary
If arrested this festive season, it is important to understand your rights regarding bail applications guaranteed by the Criminal Procedure Act. For minor offences, you may apply for police bail at the police station and be granted bail by any police official bearing the rank of Inspector or higher. For Schedule 7 offences you would need to apply for Prosecutor bail. This may be granted by the Director of Public Prosecutions (DPP), or a prosecutor authorized by the DPP. These types of bail application must be made before 48 hours after the time of arrest and before the accused appears in Court.
For more serious offences (such as in Schedules 5 and 6), the accused must appear in Court. For this bail application, the accused bears the onus to prove (on a balance of probabilities) that the interests of justice or extenuating circumstance warrants bail. Further, the Court must be satisfied that the accused will not endanger anyone’s safety, avoid trial, obstruct justice, or disturb public peace and security.
We advise having an attorney to help you navigate the terms of your arrest and release.
Makhoba Attorneys is a black women-led legal office based in Nelspruit, Mpumalanga. We specialize in tailored legal solutions.
Disclaimer
The contents of this piece are purely informational. It should not be construed as legal advice and does not replace the advice of a trained and admitted legal professional in crafting a legal strategy. Approaches to legal recourse should be determined on a case-by-case basis.
The details provided here are subject to legislative and regulatory changes, and decisions on legal matters depend on the discretion of any officials duly appointed to consider those matters.
