I am always mindful of how people perceive the bail process, and it is evident that many South Africans believe that an attorney can simply walk into a police station and immediately walk out with their client. I attribute this misconception to television portrayals, but I wish it were true. Allow me to provide a brief explanation of the process.
Bail refers to a sum of money paid as a guarantee to the state, ensuring that the accused person will attend their trial. If the accused fails to appear in court without a valid reason for 14 days, the court has the authority to forfeit the bail. However, if the accused person attends all court dates, the money will be returned upon the finalization of the case.
When I receive a call from the police station, I first ask the following questions:
- What is the charge? This helps me determine the appropriate legal schedule, which I will explain shortly.
- Has the accused person been arrested or convicted before? This is crucial because after-hours bail is typically reserved for first-time offenders, although it may not always be strictly applied.
- Is the accused person South African? If not, do they have a valid permit to be in our country? Courts and after-hours prosecutors often deny bail if a valid permit is absent. Personally, I may disagree with this stance, but that is my opinion.
If the answer to question 2 is yes, chances of obtaining bail are slim. In such cases, you would require luck and a highly skilled attorney to persuade the prosecutor based on your specific circumstances.
If the answer to question 3 is no, indicating that the accused person does not have a valid permit or visa, the situation becomes uncertain. Different courts have varying opinions on whether a foreign national without a permit can be granted bail. Once again, the legal representative must construct a clear and concise argument in favor of bail. In some lower courts, bail may be granted, but unfortunately, it may be denied in others. The decision to grant or deny bail largely depends on the magistrate and their discretion.
Bail applications are divided into three categories:
- Bail at the Police Station (Police officer sets bail on J496 / J534) – reserved for Schedule 1 offenses only.
- Bail at the Police Station (prosecutor sets bail section 59A of the Criminal Procedure Act) – reserved for Schedule 7 offenses only.
- Bail at court – for those who failed to contact an attorney after hours, as well as for all other offenses falling under different schedules.
Determining bail at court is approached differently. For offenses falling under schedules 1 to 4, the state must prove that it is in the interests of justice for the accused to remain in custody. To do this, the prosecution typically presents evidence of the accused’s previous conduct, such as prior convictions, pending matters, and warrants of arrest related to other cases.
If there is an active warrant for the detained accused, the individual must first be taken to the court where the warrant is active to have it canceled before applying for bail. Failure to do so may lead to the denial of bail based on the existence of the warrant.
In schedule 5 matters, the accused must demonstrate that it is in the interests of justice to be released on bail. This can be done by submitting an affidavit outlining the reasons for seeking bail or by providing oral testimony in court explaining why it is justified.
In schedule 6 matters, the accused bears the burden of proving the existence of exceptional circumstances that justify their release on bail. Typically, the accused takes the witness stand and gives oral evidence highlighting the exceptional circumstances.
It is important to remember that in schedule 5 and 6 matters, the onus is on the accused to satisfy the burden of proof. Failure to do so will likely result in bail being denied pending trial.
For more details on the various schedules, one can refer to the Criminal Procedure Act. In the next article, I will delve deeper into the schedules themselves. I hope you found the above information useful.
Clynton S Poole (Attorney of the High Court of South Africa – CSP Attorneys)
Clynton Steven Poole Attorneys 
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