BAIL – HANDBOOK

Introduction

The effect of bail

- When bail is granted, an accused who is in custody shall be released from custody upon
payment of, or the furnishing of a guarantee to pay, the sum of money determined for his
bail—s 58.
- He must then appear at the place and on the date and at the time appointed for his trial,
or to which the proceedings relating to the offence in respect of which the accused is
released on bail are adjourned—s 58.
- His release shall, unless sooner terminated under certain circumstances, endure until a
verdict is given by a court in respect of the charge to which the offence in question
relates, or, where sentence is not imposed forthwith after conviction and the court in
question extends bail, until sentence is imposed—s 58.

- However, s 58 contains a proviso to the effect that where a court convicts an accused of
an offence contemplated in Schedule 5 or 6, the court shall, in considering whether the
accused’s bail should be extended pending imposition of sentence, apply the provisions
of s 60(11)(a) or s 60(11)(b), as the case may be, and the court shall take into account

(a) the fact that the accused has been convicted of an offence referred to in Schedule 5
or 6, and
(b) (b) the likely sentence which the court might impose.

- The provisions of s 60(11)(a) and s 60(11)(b) are discussed below.

The burden and standard of proof in bail applications

- The standard of proof required from an accused where he bears the burden of proof as
provided for in s 60(11)(a) and (b) is the civil standard, namely proof on a balance of
probabilities.

- In all cases falling outside the ambit of s 60(11)(a) and (b), the burden of proof is on the
prosecution.
- The standard of proof is proof on the balance of probability.
- Proof beyond a reasonable doubt is not necessary because guilt or innocence in respect
of the charge is not the issue.
- Section 25(2)(d) of the interim Constitution provided that every person arrested for the
alleged commission of an offence shall, in addition to the rights which he has as a
detained person, have the right ‘to be released with or without bail, unless the interests
of justice require otherwise’.
- This former constitutional provision – which is echoed by s 60(1)(a) of the Act – placed
the burden of proof on the state.
- It is submitted that s 35(1)(f) of the new Constitution has not altered the position.

Bail granted by police before first court appearance of an accused

- The question whether bail should be refused or granted is essentially a judicial one, that
is, one that must in principle be determined by a court of law.1
- However, bail may in certain limited circumstances be granted by the police: s 59.
o This kind of bail is in practice referred to as ‘police bail’.2
- Its purpose is not to oust a judicial decision but to ensure that pre-trial release on bail
can in respect of relatively trivial offences be secured as soon as possible – that is, even
before the first appearance a lower court.3

In summary, "police bail" refers to the bail granted by the police in specific circumstances,
primarily for minor offenses. Its purpose is to expedite the process of securing pre-trial release on
bail, ensuring that individuals accused of relatively trivial offenses can be released at the earliest
opportunity, even before their initial court appearance.

- At any rate, if police bail cannot be granted in terms of s 59 or if it can be granted but is
refused, an accused has every right to apply to a lower court for bail at his first
compulsory appearance as required in terms of s 50
- Bail granted by the prosecution pending an accused’s first appearance in court is also
possible.

1
Normally, the decision to grant bail is made by a judicial authority, such as a court.
2
However, in certain limited circumstances, the police are authorized to grant bail = police bail.
3
The purpose of police bail is not to replace or override a judicial decision but rather to facilitate the release of
the accused on bail as quickly as possible, especially for minor or relatively trivial offenses. It allows for pre-trial
release even before the accused's first appearance in a lower court.
Police bail: the limitations

- Only cash payments can be received in payment of police bail. Sureties cannot be
accepted.

- Release on police bail can only take place before an accused’s first appearance in a
lower court—s 59(1)(a). This limitation is essential in order to ensure that courts remain
in direct and exclusive control over release on bail once the case is on the roll.

- Discretionary special conditions (these are conditions other than the essential bail
conditions concerning appearance in court on a specific time and date and at a specific
venue), as provided for in s 62, cannot be added by the police when releasing an
accused on police bail.
o However, a court of law may upon a prosecutor’s application add special
conditions to police bail—s 59(2) as read with s 62.
- In other respects, police bail shall, if it is in force at the time of the first appearance of the
accused in a lower court, remain in force after such appearance in the same manner as
bail granted by a court—s 59(2).

- Police bail is not possible in respect of offences referred to in Part II or Part III of
Schedule 2 of Act 51 of 1977.
- Parts II and III include virtually all serious common-law crimes, for example, treason,
sedition, murder, rape, arson, kidnapping, robbery, theft, fraud, and assault (when a
dangerous wound has been inflicted). Part II also refers to certain serious statutory
offences, for example, drug offences and offences relating to coinage.

- Police bail may not be granted in respect of ‘essential infrastructure-related offences’.

See s 2 as read with s 3 of the Criminal Matters Amendment Act 18 of 2015.

The discretion

- It has been held that, since in principle a theoretically innocent person should not be
deprived of his liberty, an application for police bail should—like an ordinary bail
application—neither be frustrated by an excessive amount nor be refused in the absence
of substantial cause for such refusal.
- It has been suggested that an action for damages will lie should police bail be refused on
malicious grounds, or where the properly authorised official had simply refused to
exercise his discretion.