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THE RIGHT TO BAIL IN SOUTH AFRICA



What are your rights?


Once arrested, the accused must immediately be taken to the nearest police station and be informed of his/her right to: -

  • legal representation;

  • be informed that s/he is entitled to bring an application for bail;

  • be informed that s/he may not incriminate him/herself;

  • be informed of the reason for his/her arrest;

  • be brought before a court within 48 hours (weekend and public holidays excluded) after his/her arrest or on the first court date after the expiry of such period should the 48 hours expire over a weekend; and

  • a speedy and fair trial.


According to Section 35(1)(d) of the Constitution - “Everyone who is arrested for allegedly committing an offence has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest; or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day”.


What is bail?


Bail, simply put, is when a person is released from custody upon payment of a sum of money. It is paid as a security or guarantee that the accused person shall appear in court for all proceedings to the offence which the accused is charged with.


There are 3 different types of bail


1. Bail before the first appearance of the accused in a lower court (Police / Station Bail):


An accused may be released on bail for minor criminal offences as stipulated in Section 59 of the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act”). Police bail is set by any police official of or above the rank of non-commissioned officer, in consultation with the police officer charged with the investigation.


2. Bail authorised by an attorney-general or prosecutor:


An attorney general or authorised prosecutor in consultation with police official in charge of the investigation, may release an accused on bail for offence listed in schedule 7 of the Criminal Procedure Act. This includes offences like public violence, culpable homicide, assault involving grievous bodily harm, housebreaking, malicious injury to property and any offence relating to the illicit possession of drugs, amongst other things.


3. Bail application of an accused in court:


An application for bail can be made by an accused person at any stage before his or her conviction in respect of the offence he or she is charged with. Bail is granted once the court is satisfied that the interests of justice permit an accused’s release.


What factors will be taken into account when applying for bail?


There are many factors that are taken into account before bail can be granted. Some of these factors include, but are not limited to, the seriousness of the offence, the safety of the complainant, the interests of justice, if the accused is a flight risk and previous convictions.


The court will not release an accused on bail where the following grounds are present:


  • there is a chance that the release of the accused will endanger his/her own safety, the safety of the public or any other particular person;

  • there is a chance that the accused will avoid his/her trial;

  • there is a chance that the accused will attempt to influence or intimidate witnesses, or hide and/or destroy evidence;

  • there is a chance that the accused will undermine or endanger the functioning of the justice system including the bail system; or

  • there is a chance that the accused will disturb public order or undermine public peace and security.


What happens once you pay your bail amount?


Paying bail does not mean that a person is guilty of the offence that they have been charged with, it is merely a way of securing the accused’s appearance at court. The bail amount is refunded to the accused once the matter has been finalised, whether or not he or she was found guilty.


If the accused does not attend court on the date and time allocated for trial, or fails to comply with the conditions set for bail, the accused’s bail will be cancelled and the bail money will be forfeited to the state, unless the accused can give the court good reasons why he or she failed to appear or to comply with the conditions. Where the accused failed to appear in court, a warrant of arrest will be issued.


Kern, Armstrong and Associates provides assistance or advice on all bail, unlawful arrest and/or criminal related matters.


For any assistance please contact greg@kernattorneys.co.za.

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