In life, unexpected events may occur. You may find yourself behind bars without any knowledge pertaining to your rights as a detained person. Don’t worry any further as you are entitled to a variety of rights and one of them being the right to legal advice and assistance by your legal representative. South African law states that no person may be detained without appearing before a court of law.In terms of the South African Constitution and the Criminal Procedure Act, an individual upon being arrested must be informed by the police of their legal right to apply for bail after being immediately taken to the nearest police station. They must also be informed that they have a right for their matter to be heard by a Court of law within 48 hours of normal Court days after being arrested.


Bail: Its purpose and effect

Bail is money paid to the Court or to the police. The purpose of bail is to ensure the presence of an arrested person at a given trial date and time. It is also for the purpose of releasing arrested persons until their trial date, provided they meet specific requirements. Bail comes in various forms such as police bail, prosecutors bail and bail granted by the Court. The type of bail an arrested person can apply for will mainly depend on the offence committed as this will determine under which schedule the offence will be classed under.

Should an arrested person not make an appearance before a Court at a given date and time or if an arrested person violates any of their bail conditions, the arrested person will forfeit their bail money to the state. Should the arrested person appear before a Court at a given date and time and adhere to all their bail conditions, the arrested person will be reimbursed with his bail money irrespective of the outcome of the trial. It is very important to take note of the fact that bail will only be granted by the Court if it is in the best interest of justice to do so.

Information that you should furnish your legal representative with

• When were you arrested?
• What were you arrested for?
• Where are you being detained?
• What is the case number of your matter?
• Who is the investigating officer?
• Your personal information of the accused e.g. name, surname, next of kin, residential address and any of your health issues

Types of bail and the bail application procedure in South Africa

Police Bail

The first type is the so called “Police Bail” as provided for in section 59(1)(a) of the Criminal Procedure Act, which enables an arrested person to apply for bail at the police station before the expiration of 48 hours and before first appearance in court. Police Bail is granted by any police official of the rank inspector and above. Police bail will only be granted for minor offences such as theft under R2500, common assault or possession of cannabis less than 115 grams.  

Prosecutor Bail

The second type of bail that can be applied for before the arrested person has to make their first appearance in court is the so called “Prosecutor Bail” in terms of section 59A of the Criminal Procedure Act.

This form of bail can also be applied for while the arrested person is at the police station but to a Prosecutor who has been authorised by the Director of Public Prosecutions (DPP) to grant bail for more serious offences. Prosecutor bail is mainly for offences listed in schedule 7 such as public violence, culpable homicide, arson, bestiality or robbery where the amount involved does not exceed R20 000.

However, when a person is charged with more serious offences like those found in schedule 5 & 6, then in terms of s 50(6) (b) & (c) after hours bail cannot be applied for, and bail for these schedules will only be decided upon when the arrested person makes his/her first appearance in court.

Bail applications in Court

The third form of bail that can be applied for is bail at the first court appearance in terms of section 60 of the Criminal Procedure Act.

According to this section an arrested person can apply for bail upon his/her first appearance or at any time before the accused is convicted, if the interests of justice permit the granting of bail. The court can also on its own accord, if the issue of bail is not raised, enquire from the accused if he/she wishes the issue to be considered.

The interests of justice will favour your release on bail, if the circumstances listed in section 60(4) do not exist. These are:

• That there is likelihood that you, if released, will endanger the safety of the public or any particular person or commit a schedule 1 offence;
• That, if released on bail, you will attempt to evade your trial;
• That you will attempt to influence or intimidate witnesses or to conceal or destroy evidence;
• That you, if released, will undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system; or
• That your release will disturb public order or undermine public peace or security.

It is also very important to note that any submissions made by yourself during bail applications, may or will be used against you, during your trial.

It is very important to remain calm and collected and very respectful to the officers arresting you or a loved one and contact a defence attorney as soon as reasonably possible to assist you.