My son has been arrested: What now?

2015-10-29 06:00


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I recently heard from a friend that her son had been arrested for drunken driving and that it had been quite a traumatic experience for the family to get their son released on bail.

I know nothing about bail and will not know what to do to should my own son be arrested one day.

How does bail work and what should I know?


The reality is that arrests takes place much more commonly than one realises, and it does not necessarily only happen to violent criminals.

It is therefore important that one knows the basics of how the process works and what has to happen to be released on bail.

Our law makes provision for three types of bail, each of which I will now briefly explain.

Police bail

Police bail is usually fixed after hours at the particular police station where the arrested person is detained, and is only possible when a person is accused of a less serious charge, for example drunken driving, common assault or store theft.

Firstly determine where the person is being detained.

This will usually be the police station closest to the incident.

Take proof with of where the person lives and works.

Approach the relevant police office in command of that station and ask if the person has already been charged.

If the person has been charged, the police docket will have a ‘CAS’ number and be allocated to an investigating officer.

Ask who the investigating officer is and enquire from him if he will be willing to fix bail X and if so, on what basis.

Important to remember is that police bail can only be fixed if a person has no former offences or pending cases against his or her name.

If police bail cannot be granted, the police may, according to the law, detain a person for 48 hours before the person is brought before court.

Prosecutor’s bail

Prosecutor’s bail is commonly determined after hours at the specific police station.

This type of bail can be fixed for more serious offences, such as culpable homicide, assault with the intent to do grievous bodily harm, housebreaking and theft, where the alleged stolen goods do not exceed R20 000.

Prosecutor’s bail may not be fixed for offences such as murder or rape.

The same process that is followed with police bail, can be followed here.

What differs from police bail however, is that a state prosecutor has to be present during the fixing of bail.

A list of the particular state prosecutors and more specifically which prosecutor is on duty, can be obtained at your nearest Magistrate’s Court. It is important to remember that the investigating officer as well as the prosecutor’s permission is required for this type of bail.

The state prosecutor may also link any reasonable condition to the bail, such as that the accused may not contact the complainant, etc.

Court bail

Court bail is fixed in court in respect of any other offence. In terms of our law a person has to be brought before court within 48 hours, where the person can then apply for bail.

This will be the case where police or prosecutor’s bail had not been permitted or requested.

The process followed during court bail is complex, given that the court has to take numerous factors into account when deciding whether to grant bail or not.

Factors that the court will consider, include whether the person has a fixed address, any previous offences and whether the person has any pending cases against him or her.

Important to remember is that the state has the right to postpone any bail application for a period not exceeding seven days, which means the accused will be sent to jail until he can be brought before court again.

The state may then again request a postponement for a formal bail hearing. With the congestion in our courts these days, it can happen that a bail application only takes place in two weeks’ time.

To assist with managing the complex process of court bail, and to prevent a person from having to wait for two weeks for a bail application, it is important to acquire the assistance of a criminal law specialist. If you are the arrested, it is always wise not to just make a statement. Often one is under intense strain at the time and one’s thoughts are not always clear, in which case it is preferable not to make a statement at that point. It is therefore advisable in all instances of arrest to acquire the assistance of a criminal law specialist that can help manage the legal process best during this taxing time.


Adriaan van Rensburg,
Phatshoane Henney Attorneys.

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