BAIL: HOW IT WORKS IN SOUTH AFRICAN LAW

2014-02-21 06:06

After all the noise that the Waterkloof Four Murder has made in the media, I think it is only relevant if we discuss the legal proceedings in South Africa as well as deeply analyse our government’s policies when it comes to bail and the dangers of letting an accused still roam around until his/her court proceedings.

Once arrested, an individual arrested in South Africa must immediately be taken to the nearest police station and be informed of their legal right to apply for bail and their right to be heard in court within 48 hours of normal court days(this excludes Saturdays, Sundays and public holidays).

According to s 35 of the Criminal Procedure Act 51 of 1977 “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”

Firstly, let us understand what is the purpose of bail?

Bail is money paid to the court or to the police upon successful application of a bail application to be released from prison, before a court hearing. By paying bail the accused is released until the date of his or her court case or court appearance. When a judicial decision has been reached, bail money paid to the court or the police are returned to the accused, even if the person is found guilty of an offence.

The Criminal Procedure Act indicates that the purpose of bail is to ensure that an accused person returns to court for trial and to minimise the effects ones right to freedom when they have not been convicted. The process is not one that should burden or punish the accused. Bail is granted more readily when the accused is not dangerous and can easily be found by law enforcement agencies. In the case of S v Dlamini; S v Dladla And Others; S v Joubert; S v Schietekat the constitutional court ruled that bail can be granted if it is the interests of justice to do so. Commonly, there are bail conditions based on the facts of the case that an accused must comply with, pending judgement of their case.

Bail money will not be paid back when the accused person does not come to court on the day of their court case (skips bail) and cannot be found in 14 days of a warrant of arrest being issued, if they interfere with any witnesses, or if they break any of their bail conditions.

The defendant to a case has a right to ask the court to be released on bail until the case finishes. Once it is permissible for a person to be released with a bail payment, the accused shall be released from custody upon payment of the sum of money determined for bail.  He/She shall appear at the place, date and time to which the proceedings relating to the offence will be heard. Such person will be released from jail until a final verdict is given or until sentence is passed, depending on the circumstances of the case.

When considering a bail application, we must ask what it means to be released in the interests of justice. Put simply, the accused should not appear to be a danger to the public, there should be no likelihood that they will attempt to run away (e.g. a flight risk), intimidate witnesses or jeopardise the trial. When the probability of an accused attempting to flee is considered, factors looked at by the court, include:

  • Does the accused have a passport
  • Does the accused have relatives outside the country,
  • Does the accused have means to flee etc.

The prosecutor will go through the complainant’s or the police statement, to establish whether a  Crime has been committed and whether there is anyone to be blamed, and if so what charges can  be brought against the accused.

All information presented to court at bail hearing stage can be, and is often used, during the trial.

Live media broadcasts can be barred from proceedings if the court feels it might compromise the investigation or the accused will be prejudiced. If any of the parties raises an objection, the court will look into whether it is in the public interest that such proceedings be carried in live broadcasts. The final order will be made by the Presiding Officer.

One should always be aware that on paying bail one must get a receipt. Only the person with a bail receipt and which person has signed the bail receipt will be allowed a refund of bail money after the trial has completed.

If the accuse/defendant is released on bail, he/she will get a written notice that will tell him/her where the court is, it will indicate the day and time that he/she must be in court and it will also show conditions of bail. An example of this would be the bail conditions of Oscar Pistorius, which include alerting authorities a week before he plans to travel and providing an itinerary of his trip as well as returning his passport to the court within 24 hours of returning to South Africa.

One should also be aware that when bail is granted it does not imply acquittal or withdrawal of the case. The accused will still face the charges in a court of law when a trial date is set.

Should you or anyone you know get arrested, the best option is to find yourself a good criminal defence attorney, who will assist you with a bail application for your immediate release.

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