If a person is arrested for allegedly committing an offense they must be charged and
brought before Court within 48 hours of their arrest. If the accused in custody wishes
not to be imprisoned pending the finalisation of the trial they may request the Court
to be released temporarily. For minor offences the “police bail” can be granted or the
police may release you on a warning. In the case of police bail the investigating
officer will propose an amount for bail and an agreement should then be reached on
the amount of bail. If the State decides to oppose the release of the accused, the
accused must be given the opportunity to apply for a formal bail application within
seven days after their first appearance.
Schedule 1 to 4
usually include minor offenses and the accused is usually entitled to
automatic bail. The presumption of the law is that every person is innocent until
proven guilty; therefore the Court will ordinarily grant bail to an accused. In these bail
applications the onus rests on the state to give sufficient reasons why the accused
should not be released on bail.
Schedule 5 & 6
include offenses such as murder and rape the onus rests on the
accused to persuade the Court to temporarily be released on bail. In schedule 5 bail
applications, the accused needs to satisfy the court that interests of justice permit
their release on bail, subject to reasonable conditions. In schedule 6 bail applications
the accused needs to show the court there are exceptional circumstances that permit
their release.
All the information that was submitted to court in the bail application can be used in
the trial. Bail applications are governed by Section 60 of the Criminal Procedure
Act 51 of 1997. This Act provides a number of factors that should be taken into
account by the court when granting or refusing bail.