CRIMINAL LAW PROCEEDINGS

BAIL APPLICATIONS

CRIMINAL LAW PROCEEDINGS

BAIL APPLICATIONS

The truth is that no one ever wants to see themselves on the wrong side of the law. The fortunate part is that even if you are arrested such arrest does not mean that you renounce your rights. Below is a short article on what you should know, should you, a friend or family member find themselves in police custody.

Legislative framework

Section 12(1)(a) of the Constitution of the Republic of South Africa 108 of 1996 guarantees everyone’s right to freedom and security of person, which includes the right not to be arbitrarily or without just cause deprived of their freedom. Section 35(f) further states that everyone who is arrested for allegedly committing an offence has the right… to be released from detention if the interests of justice permit, subject to reasonable conditions.

The above legislation read with section 60 of the Criminal Procedure Act translates in practice as follows:-

Firstly all persons arrested and accused of an offence are presumed innocent till proven otherwise. As such if a person wishes to not be imprisoned pending the final outcome of the trial, he or she usually through the assistance of a Legal Practitioner, may apply to court to be released on warning or on warning with conditions attached to such a release. Bail may be requested by an accused at any time during the court proceedings when he or she is present before the court. 

Is the Bail Amount proportional to the strength of the State’s Case?

There is a common misconception that the amount of bail granted is a reflection on the strength of the State’s case, this is incorrect as the bail amount is an amount which the court is of the opinion will ensure that the accused presents him or herself before the court and not evade their trial. More simply put, an accused with more financial means will be granted a higher bail amount compared to an accused with little to no means. The bail money paid will be forfeited to the state in the case whereby an accused fails to present themselves before a court when warned to do so.

What is the case whereby an individual is accused of a schedule 6 offence in terms of the Criminal Procedure Act?

Charging a person with a Schedule 6 offence places more burden on the accused to convince the court that it is not only in the interest of justice, but there are exceptional circumstances that exist  to qualify him or her to be released as such. This burden places the obligation for the accused to be forthcoming with information relating to the circumstances of the crime on sworn affidavit, the Bail affidavit may be used by the State against the accused during trial. It is thus important to submit a properly drafted affidavit which is true in content.

The issue of the constitutionality of the reverse onus required for bail proceedings involving schedule 6 offences shall be dealt with in the next article to be published.

NOTE THAT THIS ARTICLE IS NOT TO BE CONSTRUED AS LEGAL ADVICE AND YOU ARE ADVISED TO SPEAK TO YOUR LEGAL PRACTITIONER FOR FURTHER INFORMATION IN THIS REGARD

Njabulo Mgenge

Njabulo Mgenge

UKZN LLB, Professional Assistant Attorney

NEED ASSISTANCE?

  • This field is for validation purposes and should be left unchanged.
Scroll to Top