The South African Constitution grants every accused person, or essentially every person who is alleged to have committed any criminal offence, the right to apply for bail.
Bail is money paid to the police or court by an arrested person that ensures his release until the next court date. Bail is regulated by the Criminal Procedure Act and the amount thereof will be the discretion of the police or Magistrate.
THE DIFFERENT FORMS OF BAIL
POLICE BAIL
In terms section 59 of the Criminal Procedure Act, when a person is arrested on a criminal charge for allegedly committing an offence which falls outside Part II and Part III of Schedule 2, he may apply for bail at the police station before the expiration of 48 hours of his arrest. Common assault and theft under R2 500 are among the offences for which police bail may be granted. The police determine the amount of bail.
PROSECUTOR BAIL
In the event that police bail was denied, the arrested person must be brought before a Court within 48 hours and then becomes eligible for prosecutor bail.
Subject to conditions set out in Section 59A of the Criminal Procedure Act, the Director of Public Prosecution (DPP) or a Prosecutor authorised in writing by the DPP may allow an arrested person to be released on bail before the first court appearance.
Prosecutor bail may only be granted if the arrested person has been charged with a Schedule 7 offence. The process requires consultation with the arresting Officer or Investigating Officer. Schedule 7 offences include among others drug possession, robbery, assault and culpable homicide.
If you did not get Police Bail, you would need to be brought in front of the Court within 48 hours of your arrest to be eligible for Prosecutor Bail.
BAIL APPLICATION IN COURT
When a person is charged with a Schedule 5 or 6 offence, Section 60 of the Criminal Procedure Act requires the accused to make a formal bail application before a Court.
The offences in respect whereof a bail application is required are among others murder, including premeditated murder, attempted murder, rape, indecent assault, corruption and drug-related offences.
The application can be conducted by way of an Affidavit or oral evidence in front of a Magistrate.
It is important to inform the court of any previous convictions or pending cases. Failure to disclose this information is a criminal offence. The bail may be opposed by the prosecutor and the court will consider all of the information before making its decision.
The accused must satisfy the presiding officer that if his bail is granted, he will not be a danger to other people, will not intimidate any witnesses, will not commit any further crimes and that he will be present at all future court hearings.
The amount of bail will be the sole discretion of the presiding officer. The bail money paid by the accused person will be refunded to him once the matter is finalised but may be forfeited if the conditions of bail are not met.
It is always advisable to contact a criminal attorney to assist with bail applications.