BAIL
LU 6
THEME 1 BAIL APPLICATIONS
Bail is an amount of money paid to ensure
the temporary release of someone (accused)
who has been arrested for an alleged
criminal offense.
The general rule is that release on bail
should be in the interests of justice.
What is The purpose of bail is to ensure that the
Bail? accused will attend all his/her future court
appearances
When bail is granted, an accused who is in
custody shall be released from custody upon
payment of, or the furnishing of a guarantee
to pay, the sum of money determined for his
bail—s 58
Bail is a method of securing a compromise.
The presiding officer has an inquisitorial duty
when considering a bail application.
In SA the bail provisions for children are
guided by the CJA which aims to ensure that
children in conflict with the law are treated
in a manner that takes into account their
age, dignity and the need for reintegration
Release of into society.
children on The Act proposes measures for determining
a child’s age, as many children accused of
bail crimes do not know their age.
S28 of the Constitution sets out the
principles pertaining to the detention of
children
1.The release of a child on bail must follow
the procedures outlined in Chapter 9 of the
Criminal Procedure Act, with specific
exceptions as detailed in Section 25 of the
Child Justice Act.
2.An application for the release of a child on
Application bail must be considered in three stages:
process a. assessing the interests of justice,
b. determining the ability to pay bail,
c. and setting appropriate conditions for
release
• The presiding officer must assess whether
the child and their parent, appropriate adult,
or guardian can pay the bail amount. If they
cannot, non-monetary conditions for
release must be set.
• If the child and their parent or guardian can
Bail pay bail, the presiding officer must set
consideratio conditions for release and an appropriate
bail amount.
ns • When deciding on detention or release,
preference must be given to the least
restrictive option possible, starting with
the least restrictive option based on the
circumstance
Types of bail
• Police Bail (B4 first court appearance) -An arrested person can apply for bail at the police station within
48 hours of arrest if the offence is not serious.
• The police will inform the accused of their rights, transfer them to the nearest police station, and allow
them to make a phone call.
• Prosecutor Bail -The Director of Public Prosecution (DPP) or an authorized prosecutor , in consultation
with the police officer may grant bail for Schedule 7 offences like fraud, theft, drug possession, robbery,
assault, and culpable homicide.
• If police bail is not granted, the accused must be brought before the court within 48 hours for prosecutor
bail
• Court Bail - For Schedule 5 or 6 offences, a formal bail application must be made in court under Section
60 of the Criminal Procedure Act.
• The bail application can be made through an affidavit or by calling witnesses or the accused to the
stand.
• The accused must disclose any pending cases or previous convictions during the bail hearing.
• The court will consider various factors before granting bail and may impose conditions on the release.
Bail must be addressed as a matter of urgency
Bail is non-penal in character
Bail and In terms of s 60 (5)(f) the court may, however,
consider the prevalence of a particular type of offence
some It is undesirable that an accused person should be
fundamenta deprived of pre-trial liberty if the sentence likely to be
imposed will be in the form of a fine or one other than
l principles imprisonment—Moeti 1991 (1) SACR 462 (B) at
463H.
of criminal Each case must be considered on its merits. The
justice prosecutor must make an independent assessment of
the case and ought not blindly to follow the police’s
recommendation that bail should be refused—
Hlopane 1990 (1) SA 239 (O) at 242.
The issue concerning release on or refusal of
Bail and bail should not be used as an inducement to
some obtain a statement from an accused—Joone
1973 (1) SA 841 (C) at 846H.
fundamenta
A court must inform an unrepresented
l principles accused of his right to apply for bail, as well
of criminal as the nature of the procedure to be followed
—Ngwenya 1991 (2) SACR 520 (T); Steytler
justice 1982 SACC 3-17. See also s 60(1)(c)
Police Bail:
Granted by a police official under Section 59 of the
Distinctions CPA
between Can be applied for at the police station within 48
hours of arrest
police bail
Only available if the alleged offense does not fall
and under Part II
prosecutor or Part III of Schedule 2 offenses
bail
Examples of eligible offenses include theft under
R2,500,
common assault, or possession of dagga less than
115 grams
Prosecutor Bail:
• Granted by the Director of Public Prosecutions (DPP)
or an authorized prosecutor under Section 59A
Distinctions
between • Can be authorized before the accused's first court
police bail appearance if the accused is in custody for a Schedule
7 offense
and • Schedule 7 offenses are slightly more serious than
prosecutor those eligible for police bail, such as culpable
homicide, assault, robbery, theft and fraud (where the
bail amount does not exceed R20,000), and possession of
drugs
• The accused must still be brought to court within 48
hours
if bail has not been granted by the prosecutor or police
• A court may postpone a bail application for a
period not exceeding 7 days at a time under
Section 60(4)-(9)
When a of the CPA if certain conditions are met.
court can • The court may postpone the bail proceedings for
postpone a reasons such as obtaining further information
needed to make a decision regarding bail,
bail requiring the prosecutor to place on record
application reasons for opposing the application,
or if the court deems it necessary for the
administration of justice
Magudumana v S Appeal
This case concerned an appeal in terms of section 65(1)
of the Criminal Procedure Act 51 of 1977 (the Act) against
the refusal by the Magistrate at Bloemfontein to release
the appellant to bail on the 11th of September 2023.
The Learned Magistrate refused bail on the grounds that
the appellant is a flight risk and that no bail condition will
assist under the circumstances to limit the risk and that
the appellant did not satisfy the court that it is in the
interest of justice for her to be released on bail.
Magudumana v S Appeal
The appellant is charged, together with other accused,
on an array of criminal offences ranging from fraud,
corruption, violation of a body, defeating the ends of
justice and other charges.
Who has
locus standi
to appeal S65(1)(a) An accused who considers
himself aggrieved by the refusal
A DPP can go to the High
Court to fight a lower
against a states that: of a lower court to grant bail or by
the imposition by such court of a
court's decision to let an
accused person go free on
bail or to put a condition on
bail condition of bail, including a
condition relating to the amount
bail – s65A(1)(a). A DPP can
also go to the Supreme
decision? of bail money and including an Court of Appeal if a higher
amendment or supplementation court lets a charged person
go free on bail – s65A(2)(a).
of a condition of bail, may appeal
If either of these things
against such refusal or the happen, the court hearing
imposition of such condition to the the appeal can order the
High Court having jurisdiction or state to pay the accused
to any judge of that court if the person all or some of the
court is not then sitting. costs they spent in fighting
the appeal. If an appeal
against bail is successful,
the court that heard the
appeal must issue a warrant
BAIL CONDITIONS &PAYMENT
THEME 2 OF BAIL MONEY
It is necessary for an accused person to pay
the amount of money decided by the court in
order to be freed on bail.
The deposit has to be made with the clerk of
any magistrate's court or the registrar of
any High Court, depending on the case, with
Who pays a member of the prison staff where the
suspect is being held, or with a police officer
bail? where the suspect is being held—s 60(13)(a).
A third person may pay bail money for the
benefit of the accused—s 69(1).
Can a legal representative pay bail for
his client?
S58: Essential conditions of bail
The accused must appear at time
and place appointed for trial.
The bail release shall continue until
a final verdict is reached by the
Bail court, or a final sentence is imposed.
Bail may be revoked under certain
circumstances.
A sum of money is payable or a
surety may be given
S62: Discretionary conditions of bail The court may
impose further discretionary conditions on bail with
regard to the following:
With regard to the reporting in person by the accused
at any specified time and place to any specified person or
authority;
Bail With regard to any places to which the accused is
forbidden to go; With regard to the prohibition of or
Conditions control over communication by the accused with
witnesses for the prosecution;
With regards to the place at which any document may be
served on him under the Act;
Which, in the opinion of the court, will ensure that the
proper administration of justice is not placed in
jeopardy by the release of the accused.
Procedural and evidentiary rules
Theme 3 relating to bail
The court is
entitled to
The presiding order evidence
judicial officer to be
has an presented if it
inquisitorial lacks sufficient
duty when information to
considering a make a
Role of the bail application. decision on the
bail
court If the court lacks The
information, it
court must
application.
weigh the
may postpone interests of
the bail justice against
application for a the right 0of
period not the accused to
exceeding 7 days his or her
at a time. freedom
•Hearsay evidence is allowed in bail applications, unlike
during the trial.
•For hearsay evidence to be admissible, the state must call
the witness who made the statement to supplement the
hearsay.
•The record of the bail proceedings, excluding certain
information, forms part of the record of the trial of the
accused.
Rules of
evidence •If the accused elects to testify during the bail
proceedings, the court must inform them that anything they
say may be used against them at trial, and such evidence
becomes admissible in any subsequent proceedings.
•The accused may be required to declare whether they
confirm the information submitted by their legal adviser.
•Notwithstanding any law, no accused shall have access
to information in the police docket for bail
proceedings, unless the prosecutor directs otherwise
• S60 compels the accused or the accused’s legal
advisor to advise the court of previous convictions
or pending charges against them
Rules of • Record of this information is to be excluded from
the trail record
evidence
• However, if the accused elects to testify this
becomes part of the evidence and it is then
admissible at trial.
Factors that may constitute exceptional circumstances include:
Severe Medical Conditions: Urgent and serious medical conditions that
require immediate attention or treatment.
Bail i.r.o Cast-Iron Alibi: A strong and indisputable alibi that proves the accused's
innocence or absence from the scene of the alleged crime.
serious Absence of a Case: Situations where there is no substantial evidence against
offences – the accused or serious doubts about the case's likelihood of success.
allowed in Incarcerating an Innocent Person: Cases where detaining an individual for
an offense they did not commit could be viewed as an exceptional
circumstance.
“Exceptional No Risk of Fleeing: Factors indicating that the accused is not a flight risk and
is likely to comply with bail conditions.
circumstance No Possibility of Witness Tampering: Assurance that the accused's release
will not lead to interference with witnesses or evidence.
s” Personal Circumstances: Consideration of the accused's age, family ties,
employment status, confirmed address, and other relevant personal factors.
Interest of Justice: Any circumstances that demonstrate that the accused's
release would serve the interest of justice and align with constitutional rights
to freedom and security.
Theme 4 Preparatory Examinations
•In the context of bail applications, a summary trial
is a formal examination of the evidence and the law
by a judicial officer to arrive at a decision on a
dispute, such as a bail application.
•The term "trial" in the context of bail applications
extends to the formal examination of evidence and
law by a judicial officer to make a decision on the
Summary bail application.
trial •The court, during a summary trial, must be well-
informed to form an opinion based on reliable and
sufficient information to reach a decision on the bail
application without infringing on the responsibilities
and rights of both the State and the accused.
•A trial is referred to as a “summary trial if there
was no preliminary review before it.
•Pre-trial examinations involve preliminary inquiries or
preparatory examinations held before the trial actually
commences, especially when dealing with child offenders.
•These examinations can assist in gathering information
Pre-trial and evidence relevant to the case before the trial begins,
ensuring that all parties are adequately informed and
examinatio prepared for the trial proceedings.
n •In the context of bail applications, pre-trial examinations
may help establish the facts of the case, the charges
preferred against the accused, and any exceptional
circumstances that may warrant the accused's release on
bail
A preparatory examination is a pre-
trial proceeding that helps establish
Preparatory the facts of the case and the charges
against the accused, which can be
Examinatio relevant information for bail
n applications, even though it is a
separate process from the bail
application itself.
The magistrate had refused bail to the appellants.
The appellants were charged with one count of
Ngcobo & unlawful possession of a Smith & Wesson revolver,
one count of unlawful possession of an LM 5 rifle, one
Others v S count of unlawful possession of an R5 rifle, unlawful
possession of 22 live rounds and 28 of 5.56 rounds of
Appeal 2-23 ammunition.
It was held on appeal that the magistrate was correct
to deny bail.
What is bail?
What is colloquially referred to as free bail?
Is granting of bail a reflection of the outcome of the
case in South Africa?
What is the effect of bail granted in South Africa?
When asking for bail, of what must the accused
convince the judge or magistrate?
What is the significance of charging a person with a
Schedule 6 offence at the bail hearing stage?
What is the difference between premeditated murder
and just murder? Why would the State want to prove
pre-meditation?
What would be classified as exceptional circumstances
when applying for bail for a Schedule 6 charge?
What is taken to account and who makes the
assessment to determine flight risk probability?
