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  • Writer's pictureRikus Scheepers

Apply for bail or stay in jail

No one plans to get arrested, but sometimes a bad decision lands you in trouble. Whether you are guilty or innocent does not matter at this stage. Chances are that you may have to spend some time in a holding cell. Your only questions should be how long you will be detained, and who you can call to help you get out pending your appearance in Court.

What is bail?

Bail is paying money for your release pending your conviction or acquittal. It serves as security for your appearance in court. If you don’t show up, you forfeit your money and will be detained.

The principle is for the state to strike a balance between your liberty while ensuring that the interests of justice are upheld by securing your attendance in court, ensuring witnesses and the public are safe from intimidation, and ensuring that all evidence is preserved.

It is your Constitutional right to be presumed innocent until proven guilty. Even if you are arrested, it does not give the police the right to keep you locked up without valid reasons and under unreasonable circumstances.

When can you apply for bail?

An arrested person can only apply for bail once they have been charged with a crime. The police have 48 hours to charge and bring an arrested person before Court. At this stage you will probably be kept in a holding cell. You can either contact your attorney or wait until you appear in Court. If you are arrested on a Friday night, this means that you may have to spend the weekend in a holding cell.

What are the types of bail?

Depending on the crime you have been charged with, you may apply for one of the following three types of bail in South Africa:

Police Bail:

Police Bail may be granted by the police within 48 hours of your arrest and before your appearance in Court. Minor offenses like common assault qualifies for this type of bail. The amount can be negotiated by your lawyer with the appropriately ranked police official. In severe cases the police will not consider granting you police bail.

Prosecutor Bail:

More serious crimes like culpable homicide or assault involving grievous bodily harm, would require you to apply for Prosecutor Bail. It is granted by the Attorney-General or, more often, an authorized prosecutor after consultation with the investigating officer. This type of bail is also granted within 48 hours of your arrest and before your appearance in Court.

Court Bail:

If you are charged with a very serious crime such as murder or treason, you will have to formally apply for bail at your first court appearance or at any time before a verdict is given.

During a bail application, the court will consider the circumstances to determine whether, if you are granted bail, it is likely that:

• you will endanger anyone’s safety;

• you will evade trial;

• you will attempt to intimidate witnesses or destroy evidence; or

• your release will disturb the public peace.

Various factors will be considered, including any previous convictions, the nature of the offence, and your possession of travel documents.

If it is found that there is a low probability of the above risks materialising, you may be released on bail.

What if I don't observe bail conditions?

The court prescribes certain conditions that you must adhere to if you are released on bail. If you fail to adhere to the conditions, you risk having your bail cancelled and your bail money forfeited to the state. You will go back to a holding cell or to prison pending your next appearance in Court. Showing up to court on your court date is an implicit bail condition and must always be observed.

Bail is a delicate and urgent matter. Criminal trials can take years to be finalised and you may end up being held in a prison while you wait. A prison in South Africa is not exactly a safe place. If you do not know what a “Frans” is, and if you do not like being made someone’s “wyfie”, do not do anything stupid while out on bail or you may find yourself in prison.

Locked up and feeling blue? Contact Van Zyl Scheepers Attorneys for assistance with bail applications.

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