What Is Bail

What is bail?

  • Bail is an amount of money paid to ensure the temporary release of someone (“accused”) who has been arrested for an alleged criminal offence.
  • The general rule is that the release on bail should be in the interests of justice.
  • The purpose of bail is to ensure that the accused will be at his/her trial.

What information should be obtained from the accused once s/he has been arrested?

  • When was the accused arrested?
  • What was the accused arrested for?
  • Where is the accused being detained?
  • What is the case number?
  • Who is the investigating officer?
  • What is the personal information of the accused, such as his/her name, surname, residential address, identity number, place of work, marital status, number of children, and next of kin?

Where can a person apply for bail?

The accused or his/her legal representative can apply for bail at the police station before the accused’s first court appearance, or at court.

What should a person do if bail is granted at the police station?

  • The amount set by the police official should be paid and the accused will be released from custody.
  • The police official will give a receipt and notice indicating the alleged criminal offence together with the date and time the accused should appear at court.

What happens at the hearing of the application for bail in court?

  • The court may at the hearing of the application for bail:
    • postpone the application for no longer than 7 days;
    • obtain further information that is needed in order to make a decision regarding bail; or
    • require the prosecutor to place on record the reasons for not opposing the application.
  • The accused or his/her legal representative is compelled to inform the court whether the accused has been convicted previously of any criminal offence or whether s/he is currently out on bail in respect of any other alleged criminal offence.

What should a person do if bail is granted at court?

  • The court may release the accused on bail at any stage before his/her conviction, provided that the interests of justice permit the release of an accused or that there are exceptional circumstances that exist if the criminal offence is serious, for example where the accused has an illness that prevents him/her from being detained.
  • The court may set an amount to be paid for bail or release the accused on warning. The court may also impose certain conditions to the release, such as for the accused to report to the nearest police station once a week or to be placed under correctional supervision.
  • If the court decides to set an amount for bail, it should be paid at the clerk of the court and the person who paid the amount must be provided with a receipt.

Under what circumstances can bail be denied?

  • The court will not release the accused on bail where the following grounds are present:
    • there is a chance that the release of the accused will endanger the safety of the public or any particular person;
    • there is a chance that the accused will avoid his/her trial;
    • there is a chance that the accused will attempt to influence or intimidate witnesses, or cover and/or destroy evidence;
    • there is a chance that the accused will undermine or endanger the functioning of the justice system including the bail system; or
    • there is a chance that the accused will disturb public order or undermine public peace and security.

What will happen if the accused does not appear at court, or comply with the conditions of bail?

  • If the accused does not attend court on the date and time allocated, or fails to comply with the conditions set for bail, the accused’s bail will be cancelled and the bail money will be forfeited to the State, unless the accused can give the court good reasons why s/he failed to appear or to comply with the conditions.
  • Where the accused failed to appear in court, a warrant of arrest will be issued.

What happens to the amount paid for bail after the trial has been finalised?

  • The person that made payment of the bail money should keep the original receipt in safe keeping and when the trial has been finalised, collect the amount paid by presenting the original receipt to the clerk of the court.

What are the rights of the accused?

  • legal representation;
  • be informed that s/he is entitled to bring an application for bail;
  • be informed of the reason for his/her arrest;
  • be brought before a court within 48 hours after his/her arrest or on the first court date after the expiry of such period should the 48 hours expire over a weekend; and
  • a speedy and fair trial.

Glossary of Terms:

ACCUSED – a person who has allegedly committed a criminal offence like theft, rape or murder.

CONVICTION – the result of a criminal trial which was concluded and the accused was found guilty of the criminal offence charged.

CRIMINAL OFFENCE – act or omission (a failure to act when a person should have acted) punishable by law.

WARRANT OF ARREST – a document issued by a magistrate or judge of the court, authorising the police to arrest the accused.

WITNESS – a person who sees or hears something relevant to the criminal offence before court.

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