Viv Greene Attorneys

Bail Applications, Pietermaritzburg

Bail

Section 60 read with Section 50 (6) of the criminal procedure act 51 0f 1977, as amended, provides for bail to be set at an amount affordable to the accused, if the circumstances are such that the release of the accused on bail if the interests of justice justify it.

What is Bail?

Bail is the method by which the Court secures the attendance of the accused until the matter is finalized. The accused pays security by way of bail and should the accused person default from court, the bail money is forfeited, bail is cancelled, and a warrant issued for the arrest of the accused.

Bail is not a fine. It does not finalize a criminal matter. It is not a form of punishment but rather a method by which the court secures the attendance if the accused. There are various ways to secure the attendance of the accused, including summons to appear before court. The arrest of the accused is the more aggressive method as it infringes on the accused’s right to freedom and thus is often used a method of last resort.

How Bail is Determined

There is an extensive but not exhaustive list of factors or conditions to be considered by the courts in order to determine bail. The determining factor for setting bail is the interests of justice. The court must, based on the information before it, decide whether the interests of justice warrant that the accused be released on bail.

Section (60)(4) provides that the interests of justice do not permit the release of the accused on bail if one or more of the following factors are present:

  • Where there is a likelihood that the accused, if released on bail, will endanger the safety of the public or that of any particular person or that accused may commit a schedulable 1 offence or
  • Where there is a likelihood that if released the accused will evade his or her trial or
  • Where there is a likelihood that the accused if release will influence or intimidate witness or conceal evidence or
  • Where there is a likelihood that the accused, if released, will undermine or jeopardise the proper functioning of the criminal justice system.
  • Where there is a likelihood that if released, the accused will disturb the public order or undermine public peace or security.

The section goes further to lay out further factors that may influence a court’s decision on bail; including whether the accused is on parole, whether the accused is in custody on another matter etc.

 As previously mentioned, there is no exhaustive list of factors. The Court’s take into consideration, the personal circumstances of the accused, the nature and seriousness of the offence aswell as the interests of the community and makes a determination on the accused’s suitability for release on bail.

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Quantum For Bail

The amount at which bail is fixed is dependant on a few variables, i.e. the economic circumstances of the accused the number of dependants he has, the nature and seriousness of the offence, the interests of the community. The Court must set bail at an amount affordable to the accused. The Courts have held that the setting of bail at an amount beyond the means of the accused is tantamount to bail being refused.

Effect Of Bail

The effect of bail is such that the accused is released from custody until the conclusion of the proceedings. Bail is always granted with conditions to ensure not only that the accused attends proceedings, but further, to protect state witnesses and the administration of justice.

In terms of the conditions, the accused person must attend court on the specified dates and not leave until he is dismissed by the court, otherwise he stands to lose the money he has posted for bail. The accused is further prohibited from having any interaction with neither the complainant nor the state witnesses, either directly or indirectly (through family members or friends, etc). If any of the conditions imposed by the court are violated, the court may cancel bail and order that the accused be remanded into custody until the finalisation of the matter.  

As previously mentioned, bail is not a form of punishment and therefore, once the matter is finalized, the money is returned to the bail depositor. Bail money will be returned regardless of the outcome of the matter.

 

What If I Cant Pay Bail?

As previously stated, if bail is set at a quantum that is unaffordable to the accused, this is the equivalent of bail having been refused. If bail has been set and the accused is unable to pay it, one may then approach the court ito of section 60(2B) of the CPA. The section provides for an enquiry to be held into why the accused has failed to pay the amount set for bail. The first part of the enquiry is into why the accused has failed to pay bail. If the accused cannot pay any money at all, the court must consider whether the accused may be released on warning (without payment of money) and further conditions imposed instead (reporting to a police station on a weekly basis etc).

If after the initial enquiry, the court finds that the accused can afford bail, albeit a lesser amount, a determination must be made as to whether bail may be reduced to the amount the accused can afford.

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Bail FAQ

  • How does bail work in South Africa?

    Bail is a sum of money paid to the court or to the police. In this way, the Court secures the attendance of the accused until the matter is finalised. The accused pays security by way of bail and should the accused person default from court, the bail money is forfeited, bail is cancelled, and a warrant issued for the arrest of the accused. When the court case is over, the bail money is paid back even if the accused is found guilty.

  • How is the bail amount determined in South Africa?

    The bail amount in South Africa is determined by the economic circumstances of the accused, the number of dependants, the nature and seriousness of the offence and the interests of the community. The Court must set bail at an amount affordable to the accused.  

  • What is the purpose of a bail?

    The purpose of bail is to ensure that defendants will appear on the trial date  and all future hearings for which they must be present. 

  • When can the accused apply for bail?

    The accused can apply for bail at any stage of the court proceedings when he or she is before the court.  Normally the accused must be brought before a court within 48 hours of being arrested and may then ask to be released on warning or bail if the case is not finalised on that day.

  • Why could bail be denied?

    Bail could be denied if

    • the accused is a flight risk
    • may endanger the safety of others
    • there is a possibility of witness intimidation
    • a repeat offender
    • the accused may disturb the public order or undermine public peace or security
    • the accused is on parole

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