4 3 Ay A UAH E ON WARHIN introduction In terms of section 35 (/) of the Constitution anyone who is arrested has the right to be released on bail if the interests of justice permit. A person who is in detention is entitled to be informed of the right to institute bail proceedings as soon as is reasonably possible (section 50 (1) (b) CPA). An arrested person is entitled to apply to be released on bail at his first appearance in court (section 50 (6) (a) (bb). The release of an accused on bail may be subject to reasonable conditions. Chapter 9 of the CPA (read with section 50) deais with the release of an accused on bail. but also po officers ase on bail of accused most important differences granted by the police and bail and simi granted by pro & Police (section 59 CPA) Prosecutor (section 59A CPA) Must be non-commissioned officer or | Must be authorised in writing by DPP of higher rank {1}, Uj. Any offence other than an offence in Only for Schedule 7 offences j I. Part Il or Part Ill of Schedule 2 ['. Must consult with investigating officer | Must consult with investigating officer tM). (1) Only before first appearance in court | Only before fitst appearance in court O). fi. He continued on next pagePolice (section 59 CPA) Prosecutor (section 59A CPA) Police official may not add additional bail conditions. He may only set the date and time for the accused to appear in court [1] Accused must pay sum of money { ii Prosecutor may add reasonable bail conditions (1), Accused must pay sum of money or furnish @ guarantee to pay the sum of money Accused may also be released on warning in terms of section 72 (1) CPA (ij. No provision is made for release on warning. An amount of bail must be | set [ oe It must be stressed that this is a mere overview! The detail of this 22, broad explanation is dealt with in the questions that follow. The court must ascertain from the accused whether he wishes the question of his release on bail to be considered by the court if the issue is not raised by the accused or prosecutor. (Section 60 (1) (c) CPA) f+ The accused (or his legal representative) must disclose his previous convictions and pending cases. (Sectio 1n 60 (11B) (a) CPA) (1). The accused must confirm the information if it is submitted by his legal advisor. (Section 60 (11B) (o) CPA) fi) The court will rule whether the offence the accused is charged with is a Schedule 5 or Schedule 6 offence or does not fall within the ambit of Schedule 6 or 6 |] If the offence falls within the ambit of Schedule 5 or 6 the accused must start to present evidence to discharge the onus resting upon him. (Section 60 (11) | CPA) [1]. The court will warn the accused that anything he says may be used against him in his subsequent trial. (Section 60 (14B) (q)} []. The State may lead evidence to oppose the bail application (| or may choose not to oppose continued on next pagethe application |", In cases where the prosecutor does not oppose bail for Schedule § and 6 offences, the court must require from the prosecutor to place the reasons for not opposing the bail application on record {1}. {f the offence does not fall within the ambit of Schedule 5 or 6 the court may hold an informal enquiry into the question of the release of the accused on bail. The prosecutor and the accused may address the cour! from the bar 1} Where the application is opposed the court may also hear evidenes to enable it to make its decision on bail [1 |. The court may: {) postpone the bail proceedings for 7 days at a time as contemplated in section 50 (6) CPA; {1} (ii) in respect of matters that are not in dispute between the accused and the prosecutor acquire information in an informal rmanner to enable it to make its decision; {*] (il) in respect of matters that are in dispute require from the prosecutor and the accused that evidence be adduced. {| The court may refuse the application or grant bail subject to conditions (1. (Section 60 (12) CPA) Section 50 (6) (a) of the CPA provides for 5 distinct possibilities Read this section and write down its provisions. Section 60 (4) of the CPA deals with these grounds: Where there is a likelihood (not just a mere possibility) (1! that the accused, if he or she were to be released on bail will: (a) endanger the safety of the public; {1} (b) endanger the safety of any particular person;(c) will commit an offence mentioned in Schedule 1 to the CPA (a) attempt to influence or intimidate witnesses; | 1] (e) attempt to destroy evidence; {i} (f) undermine or jeopardise the objectives or the proper functioning of the criminal justice system (including the bail systern); and | (g)_ where in exceptional circurnstances the release of the accused will disturb the public orcler or undermine the public peace and security. Section 60 (5)-(9) of the CPA lists the factors that may be considered by the court to determine whether the abovementioned grounds have been established [| | See in this regard section 60 (6) CPA. Can you think of any other factors apart from those listed in section 60 (6)? Find the answer in section 60 (10) of the CPA. It is a factor that the court will have to consider to determine whether the interests of justice allow the release of the accused on bail [1]. It further enables the court to determine whether the offence for which the accused is charged falls within the ambit of Schedule 5 or 6 [1/. For instance, it will become a Schedule 5 offence if the accused is charged with an offence in Schedule 1 and he has previously beenconvicted of an offence in Schedule 1 {ij. It will be a Schedule 6 offence if the accused is charged with a Schedule 5 offence, but has a previous conviction for a Schedule 5 or Schedule 6 offence ||. It is therefore necessary to establish whether there is an onus on the accused to present evidence and to determine the nature of the onus {1 ). How must a cour determin bail? The amount set must be such that it compels the accused to arrive at the trial rather than forfeit the bail money [1]. The court must take all factors into account such as the seriousness of the offence and the financial means of the accused | '|. The amount must not be too excessive — that may for all practical purposes be a refusal of bail [1 (See Hiemstra’s Criminal Procedure 9-17 to 9-18) ine bail He sRaenBEOeEED {21 The bail applicant is not entitled thereto, unless the prosecutor directs otherwise (section 60 (14) CPA) [i]. In S v Green and Another 2006 1 SACR 603 (SCA), however, the court held that if the court lacks reliable and important information necessary to reach a decision on bail, it may invoke section 60 (3) CPA and order the State to grant the defence access to the documentation [7]. May morning 7 Ze See section 50 (6) (b) CPA for the answer [!}. For the meaning of the term “ordinary court hours” have a look at section 50 (2) CPA (1.vy ed with & of a motor vehicle. May the im on bail 2 aving oral argument fror rand X’s ato No. Robbery of a motor vehicle is a Schedule 6 offence {1}. In terms of section 60 (11) (a) of the CPA the court is obliged to order X to remain in custody until he is dealt with according to the law (1). X can only be released on bail if, having been given a reasonable opportunity to do so {7], he adduces evidence [1] which satisfies the court that exceptional circumstances [‘] exist which in the interests of justice permit his or her release [1]. The onus to satisfy the court is put on the accused and he must present evidence {1}. Bail granted in the absence of a proper judicial enquiry is irregular and a nullity (see in this regard S v Mabena [2007] All SA 137 (SCA)) [1]. apt ai have Exceptional circumstances do not mean circumstances over and above and different from the factors stated in section 60 (4)-(9) CPA [1]. A weak State case [1], evidence: indicating innocence [1], serious financial prejudice to the accused (i] and compelling reasons of health [1] may be indicative of exceptional circumstances. It must be stressed that each factor must not be considered in isolation, but must be weighed against all other factors in favour and against the granting of bail [1]. (See Hiemstra’s Criminal Procedure 9-12 to 9-13) in the y ou have dealt with section chedule 6 offences. Now write ‘be followed where the off 60 (11) {a} which down the procedur question is a Sch nee in 5] edule 5 offence. You will be able to answer the question after reading section 60 (11) (b) of the CPA.In terms of section 60 (11B) (c) the record of bail proceedings (excluding the information pertaining to previous convictions and pending cases) shall form part of the record of the trial If the accused elects to testify, the court must inform him that anything he says may be used against him at his trial |). Such evidence becomes admissible in subsequent proceedings lf the court hearing the bail application has failed to warn the accused that what he says may be used against him, the evidence will not be admissible in the subsequent trial | By looking at section 60 (13) CPA you will find the answer, Vhat court must hea’ e A magistrate’s court [!!. The DPP may direct that it be heard in a regional court if he deems it expedient or necessary for the administration of justice | 1). (Section 50 (6) (c) CPA) ‘ollowed in view of X’s absen The court must declare the bail provisionally cancelled and the bail money provisionally forfeited to the State |i. The court must issue a warrant of arrest for X [j. If X appears before court within 14 days of the day on which the arrest warrant was issued (either because he was arrested or on his own accord), he will be given the opportunity to satisfy the court that his failure to appear was not dueto fault on his part ('". If he so satisfies the court, the provisional bail cancellation and forfeiture of bail money must lapse ‘|. If X cannot satisfy the court that his failure was not due to fault on his part, the court will confirm the cancellation of his bail and the provisional forfeiture thereof “:|. If X does not appear before court within 14 days (the court may extend the period on good cause) the cancellation of bail and forfeiture of the bail money becomes final . (Section 67 CPA). The accused retains all his rights, such as the right to legal representation during this enquiry ©. X may also incur criminal liability for his failure to appear without good cause (Section 67A CPA) The prosecutor may apply to the court before which the charge is pending to lead evidence to prove that the accused has failed to comply with the bail condition (#1. If the accused is present, the court must hear the evidence to determine whether the accused failed to comply with the condition or whether the failure to comply was due to fault on the part of the accused /'1. If the accused is not present, the court may issue a warrant of arrest for the accused {1}. Once the accused is brought before court, the court may hear the evidence from the accused and the prosecution {”). If the accused admits that he failed to comply or the court finds that the accused failed to comply with the condition, the court may cancel the bail and declare the bail money forfeited to the State (|. (Section 68 CPA) ecused ¥ i es on bail. Thi ed Y has bot bail condition:can de te A court may issue a warrant for the arrest of the accused if it has received information on oath that the accused is about to evade justice or is about to abscond in order to evade justice. A proper application must be brought |i}. The court may also cancel the bail and order that the accused be committed to prison until the conclusion of the criminal proceedings ||. If it is impracticable to obtain a warrant in the manner described above, a magistrate can issue @ warrant upon a mere written statement under oath by a peace officer that he has reason to believe that the accused is about to evade justice or about to abscond The audi alteram partem rule will however apply and the accused must be given a reasonable opportunity to answer to the allegations |). It must also be stressed that the court will have to be satisfied that the purpose of the plane ticket is to enable Y to evade justice or abscond in order to evade justice [1]. (See section 68 CPA.) (Also study the other circumstances mentioned in section 68 (1) which may give rise to the cancellation of bail.) Section 62 CPA deals with the adding of further bail conditions, but may also assist you to formulate your answer. Remember that bail conditions must be reasonable! May only the accused pay the bail No, another person may pay the bail for the benefit of an accused (1]. (See in this regard section 69 (1) CPA.)Zz & 3 a 2 8 g 2 5 a & S g > 3 Q > s = 8 2 5 a 2 3 A bail appeal may be decided by a single judge (appeals from lower courts are ordinarily decided by two judges) *:). A Local Division of the High Court may hear the appeal (only Provincial Divisions — except the South Gauteng High Court, Johannesburg — have jurisdiction to decide ordinary criminal appeals) ::.. One may not appeal on new facts which had not yet been placed before the lower court . |. If new facts come to light which may influence the lower court's earlier decision those facts must first be placed before the lower court to make a decision on the new facts {!!. A copy of the notice of appeal must be served on the relevant DPP and the magistrate who heard the bail application"). The magistrate must provide reasons for the decision “!). The decision to deny bail may only be set aside if it was wrong ||. Bail appeals are dealt with on an urgent basis, since the liberty of an individual is at stake (11. (It should be noted that the DPP may also appeal against a decision of a court to release an accused on bail. (See in this regard section 65A CPA.) Section 63A (1) lists the requirements for the section to be implemented. Section 63A (2) and (3) deals with the procedure that must be followed &Read section 72 (1) (b), 72 (2) (b) and 72 (4) CPA for the answer. (However, take note that this position will be dealt with by the Child Justice Act which had not become law at the time this Workbook was finalised.) Further reading S v Botha en ‘n Ander 2002 (2) SA 680 (SCA) regarding exceptional circumstances S v Vermaas 1996 (1) SACR 528 (T) regarding “new facts" Viljoen v S [2002] 4 All SA 10 (SCA) pertains to the nature of bail Proceedings and the onus