BAIL & OTHER FORMS OF

RELEASE
CHAPTER 10: JOUBERT (et al) CRIMINAL

PROCEDURE HANDBOOK

2024
 Effects of Bail

❖ When bail is granted, an accused who is in custody shall be

released upon cash payment of or the furnishing of a
guarantee to pay the sum of money determined for his
bail [sec 58 of CPA].
❖ Accused must then appear at the time and date allocated to
the trial
❖ Release shall endure until a verdict is given by a court,
unless sooner terminated under circumstances
❖ Failure to comply with bail conditions may result in,
cancellation of bail, forfeiture of bail money to the state
and re-arrest of the accused
 Constitutional right to bail

❖ Sec 35(1)(f) of Constitution - The right to be released from

detention if the interests of justice permit, subject to
reasonable conditions.

❖ Sec 35(3)(h) of Constitution - The right to be presumed

innocent

❖ Sec 12(1)(a) of Constitution - The right not to be deprived of

freedom arbitrarily or without just cause
 Procedural And Evidentiary Rules

❖ Bail applications are not criminal proceedings

❖ Role of the judge is active – will ask questions to the accused or
his/her representative
❖ Disclosure of previous convictions – S 60(11B)(a) – accused or
his legal advisor compelled to inform the court of previous
convictions. State will also present SAP 69 record of previous
convictions.
❖ Free style of evidence
❖ Onus and standard of proof is on the accused (balance of
probabilities)
❖ NB: Bail is non penal in character - see S v Mbolombo 1995
(5) BCLR 614(C)
❖ Neither the amount determined for the bail nor the refusal of bail
may therefore be influenced by punitive notions (example: to
punish the alleged offender or to deter other possible offenders)
 Police bail

❖ In principle the decision whether to grant bail or not is a

judicial function

❖ However bail may in certain limited circumstances be

granted by the police

❖ Purpose is to ensure that pre-trial release in respect of

relatively trivial offences can be secured as soon as possible.
 Procedure concerning Police Bail

❖ The police official who determine bail must consult with the
investigating officer [sec 59(a)]
❖ He must complete and hand to the accused a recognizance & a receipt
for the sum of money deposited as bail. [sec 59(b)]
❖ The duplicate original must be forwarded to the clerk of the court
[sec 59(c)]
❖ The accused must be granted reasonable opportunity to consult with
his legal representative/family to obtain the amount fixed for bail
(Practitioners do not generally pay a client’s bail- bad practice)
 Limitations of Police bail

❖ It can only take place before an accused's first appearance in a

lower court.[sec 59(1)(a) of CPA].
❖ The above limitation is essential to ensure that courts remain in
direct and exclusive control over release on bail once the case is
on the roll.
❖ Only cash payments can be received.
❖ Discretionary conditions (conditions other than the bail
conditions with regard to the appearance on a specific time, date
and venue) as provided for in sec 62 of CPA cannot be added.
❖ Court can, upon application by the prosecutor add special
conditions to police bail.
❖ It can not be granted in respect offences, referred to in Part II &
Part III of schedule 2 of CPA (includes serious crimes such as
treason, sedition, murder, rape, arson & kidnapping)
 Discretion

 Theoretically an innocent person should not be deprived of

his/her liberty
 Application for police bail should, like ordinary bail not be
frustrated by an excessive amount nor be refused in the
absence of a substantial cause/reason
 A malicious refusal could lead to a claim for damages
 EF v Minister of Safety and Security 2018 (2)
SACR 123 (SCA) the court awarded damages to the
accused because of the failure of the police secure a
situation where police bail which was lawfully
recommended by a police official of the required standing,
could be paid by the spouse of the detained person
 Prosecutorial bail

❖ DPP may in respect of the offence referred to in schedule

7 in consultation with the investigating officer release an
accused on bail [sec 59A(1)]
❖ Accused must be released upon payment of or the
furnishing of a guarantee to pay, the sum of money
determined for bail, conditions may be imposed by the
Director of Public Prosecutions (DPP) or prosecutor
❖ Accused shall appear on the first court day and at a time
determined by the prosecution
❖ Prosecutorial bail must be recorded, including conditions
❖ Bail will last until the accused’s first appearance
 Bail granted by the court

❖ An accused is entitled to apply for bail at his first appearance in court.

❖ Release on bail could happen at any stage before conviction (subject to s50
(6)), unless the court finds that it is in the interest of justice that the
accused stay in detention
❖ In the event where and accused is transferred to another court for trial or
sentencing, the referring court retains jurisdiction wrt bail until the accused
appears in the other court.
❖ The bail application of a person charged with a schedule 6 offence must be
considered by a magistrate court sec 50(6)(c)
❖ Application cannot be brought outside ordinary court hours sec 50(6)(b)
❖ However the DPP may direct that the application must be considered by
the regional court.
❖ A lower court may postpone the bail proceedings or application to any date
or court for a period not exceeding 7 days if:
❖ There is insufficient evidence at the court’s disposal
❖ The matter is being referred to the DPP
❖ State need to procure material evidence that may be lost if bail is granted
❖ Postponement is in the interest of justice
 Appeal against refusal to grant bail

❖ An aggrieved party can appeal the decision of the lower court to the
provincial division of the high court with jurisdiction.
❖ Appeal can be against the refusal to grant bail or conditions
imposed relating bail money, or a supplementation of conditions
❖ Appeal may be heard by a single judge (local division of the High
Court)
❖ The accused must serve a copy of the notice of appeal to the DPP
and magistrate or regional magistrate concerned.
❖ The magistrate must then furnish his reasons to the judge sec 65(3)
❖ The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought unless such court or
judge is satisfied that the decision was wrong.
❖ If this happens, the court must give the decision which in its opinion
the lower court should have given.
 BAIL CONTINUED

WHEN IS THE REFUSAL TO GRANT BAIL

IN
THE INTERST OF JUSTICE?
 Introduction

Constitution
 Sec 35(1)(f) of CC - Everyone who is arrested for allegedly
committing an offence has the right to be released from
detention if the interests of justice permit, subject to
reasonable conditions.
CPA
 The refusal to grant bail shall be in the interest of justice
where one or more of the grounds listed in sec 60 (4)a-(e) is
established.

 The grounds in sec 60 (4)a-(e) must be evaluated in

conjunction with guidelines in subsecs 60(5)-(9) [See
Schietekat and Joubert HC cases].
 See also Dlamini CC case at para 43.
 GUIDELINES THAT THE COURT SHOULD
CONSIDER WHEN HEARING BAIL APPLICATIONS

Grounds in Sec 60(4)(a) - Factors in sec 60 (5)

• Any threat of violence which
 Where there is the the accused may have made
to any person.
likelihood that the
accused will endanger the • Any disposition to violence on
safety of the public or any the part of the accused, as is
evident from his past conduct.
particular person or will
commit a schedule 1
• Any disposition of the accused
offence. to commit offences referred to
schedule 1, as is evident from
his past conduct.[See
Schietekat case].
 Continue…

Grounds in Sec 60(4)(b)- Factors in sec 60 (6)

 Where there is the • The emotional, family,

likelihood that the and occupational ties.
accused will attempt to [See Branco case].
evade his trial.
• The means and travel
documents.[see
Thornhill case]

• The strength of the state

case.
 Continue…

Grounds in sec 60 (4) (c): Factors in sec 60 (7)

 Where there is the • Is the accused familiar

likelihood that the with the identity of
witnesses?.
accused will attempt to
influence or intimidate
• Is it feasible to attach bail
witnesses or to conceal or conditions prohibiting
destroy evidence. communication btw
accused & witnesses?.

• Does the accused has

access to evidentiary
material?.
 Continue…

Grounds in Sec 60(4)(d)- Factors in sec 60 (8)

 Where there is the • Whether the accused supplied

false information at the time of
likelihood that the his arrest or during the bail
accused will undermine proceedings.
the proper functioning of
• Whether the accused is in
the criminal justice system custody on another charge or
including the bail system. whether the accused is on
parole.

• Any previous failure on the

part of the accused to comply
with bail condition.
 Continue…

Grounds in Sec 60(4)(e)- Factors in sec 60 (8)(A)

 Where in exceptional • Whether the nature of the

circumstances there is the offence committed is likely to
induce a sense of outrage in
likelihood that the release the community.
of the accused will disturb
• [See Nel 2012 (1) SACR 576
the public order or (GJ)
undermine the public • Whether the outrage of the
peace or security. community might lead to
public disorder.
• Whether the safety of the
accused might be jeopardised
[See Miselo case].
 Continue…

Factors to be considered
Grounds in sec 60 (9)
by the court
 The period the accused has
 the section requires the
been in custody since his
court to measure the arrested.
interest of justice against
 The reason for any delay in the
the personal freedom of conclusion of the trial and
the accused and in whether this is the accused
particular the prejudiced fault.
such an accused might  Any financial loss the accused
suffer as a result of might suffer as result of his
refusal to grant bail detention.

 State of health of the accused.

 Factors which must not be considered when deciding bail

 The accused threat to hunger

strike if bail is refused.

 The accused will receive

indemnity from prosecution.
BAIL CONTINUED

PROCEDURAL & EVI DENTI ARY RULES

R E L AT I N G T O B A I L
 Pro-active role of the court

 The court must not act as a passive empire.[ Mathonsi 2016 (1)
SACR 417 (GP)

 A court must inform an unrepresented accused of his right to

apply for bail as well as the procedure to be followed. [See
S60(1)(c)].

 The active role of the court also extends to the presentation of

evidence by the parties.

 Where the prosecutor does not oppose bail in respect of matters

referred to in 60(11)(a) or (b), court must ask him to give reasons
 Application of free style of evidence

 The strict rules of evidence are relaxed.

 Eg. Hearsay evidence is readily acceptable than in a trial.

 Court must weigh up the personal interest of the accused against the
interest of justice, even if the prosecution is not opposing bail

 The court may rely on the opinion of the investigating officer or DPP.

 Oral evidence is preferred more than documentary evidence.

 Despite the inquisitorial nature of bail proceedings, the court cannot resort
to unfair and excessively robust questions to either the witnesses or the
bail applicant who opted to give oral testimony in support of his/her bail
application.
 Proof of previous convictions

 Accused is compelled to inform the court about previous

convictions.[Sec 60(11B)(a)(i)].

 Any charges pending against him.

 Whether he has been released on bail pending those

charges [Sec 60(11B)(a)(ii)] must also be disclosed.
 An accused who willfully fails or refuses to disclose such
information, commits an offence and may be convicted to a
fine or imprisonment not exceeding 2 years
 Same applies to an accused who provides false information
 The admissibility of bail records in subsequent trial

 The records of bail forms part of the record of the trial. [Sec 60(11B)(c)
read with (a)].
 Information relating to previous conviction, pending charges and
release on bail in respect of pending charges is excluded from trial
records.

 If accused testify during bail the court must inform him about the
consequences of his decision.

 Before S60(11B)(c) can be invoked, it must be clear that accused was

properly informed of his rights.
 Access to information held by the prosecution

 No accused should have access to any information, record or

document relating to the offence in question contained in the police
docket.[S60(14)]

 Is the above provision constitutional? See sec 32 and 36 of CC

and Dlamini case.

 What is the purpose of the above section?

➢ To protect witnesses.

➢ To ensure that accused does not temper with the

investigation.
 The burden and standard of proof

 Proof on balance of probability required.

 Reverse onus placed on accused when offences in schedule 5 & 6 are

committed.

 When he committed schedule 6 offence he has to prove that

exceptional circumstances exist that warrant his release. [Sec
60(11)(a)]

 When he committed schedule 5 offence he has to show that the

interest of justice permits his release [Sec 60(11)(b)].

 What does the term exceptional circumstances mean? [See C

1998 (2) SACR 721(c) and Yanta 2000(1) SACR 273 case]
 Also S V Ntengo case (2016)
BAIL CONTINUED

BAIL CONDITIONS
 Three essential bail conditions (S 58 of CPA)

❖ Accused must appear at the place and

❖ on the date and

❖ at the time appointed for his trial

 Discretionary conditions(S62 of CPA)

Any court before which a charge is pending-in respect of which bail has been granted
may add any further condition of bail—

❖ with regard to the reporting in person by the accused at any specified time and place to
any specified person or authority;

❖ with regard to any place to which the accused is forbidden to go;

❖ with regard to the prohibition of or control over communication by the accused with
witnesses for the prosecution;???

❖ with regard to the place at which any document may be served on him under this Act;

❖ which, in the opinion of the court, will ensure that the proper administration of justice is
not placed in jeopardy by the release of the accused;

❖ which provides that the accused shall be placed under the supervision of a probation
officer or a correctional official.
 Payment of Bail money

❖ Prerequisite for release on bail is that accused must

deposit some of money determined by the court
❖ This is an important process in a bail hearing and court
must be take the financial circumstances of the accused
into account
❖ A third person can pay bail on behalf of accused
❖ Should an attorney pay bail for his client – no – legal
Practice Council Code of Conduct prohibits legal
practitioners from paying their client’s bail.
❖ Legal representative should not get involved in client’s
personal interests
 Three instances that can lead to cancellation of
bail

❖ Failure to observe bail conditions

❖ Cancellation of bail where accused is about to

abscond

❖ Cancellation of bail at the request of the accused

 Criminal liability for failure to observe bail
conditions S 67A of CPA

An accused who fails to observe bail conditions:

❖ Shall be guilty of an offence

❖ Shall on conviction be liable to fine or

❖ Imprisonment not exceeding one year

BAIL CONTINUED

OTHER FORMS OF RELEASE

 Release on warning [Sec 72 of CPA]

 In terms of sec 72 of CPA an accused may be released by the

court or a police official
 Accused warned to appear before a specified court at a specified
date and time

 The release of the accused does not depend on the deposit of

money or certain conditions.

 This procedure is followed when there is no reason to expect that

the accused will try to evade his trial.

 Applicable in lessor offences

Release of juvenile accused [Sec 71 of CPA]

 If accused under 18yrs is in custody in respect of any

offence and he can be granted bail for such offence, the
court may instead of granting him bail or detaining him:

 Place him in the place of safety, or

 Place him under the supervision of a probation officer or a

correctional official, pending his appearance.(sec 27 of
Child Justice Act)
 Release on warning /bail or amendment of bail
conditions on account of prison conditions [Sec 63 of
CPA

 The whole process is set in motion by head of prison.

Requirement/s

 Over-crowding of a particular prison, likely to cause

material and imminent threat to human dignity,

 Physical health or

 Safety of an accused
 Categories of accused in respect of whom a sec 63
application can be made

 Accused charged with an offence for which police and

prosecutor may grant bail[sec 63A(a)(ii)]

 Accused who has been granted bail by lower court but

unable to pay it.[63A(b)]

 Accused not in detention in respect of any other offence.

[63A(c)]
Criterion which must be met before an accused can
be released by 63A(1) application

 The accused must have been granted bail by a lower court

in respect of the offence concerned but should be unable to
pay the amount of bail concerned[ sec 63A(1)(b)].

 The application must contain a written certificate to the

effect that the prosecuting authority does not oppose the
application [sec 63A (1)(a)(ii)]
 Role of the magistrate

If the application complies with the requirements set out in

sec 63(2)(a):

 Magistrate might order the release of the accused person or

reduction of bail money.

 If the released of the accused is ordered, the magistrate

may, if deem appropriate, amend or supplement any
condition imposed under sec 60 or sec 62 (sec
63A(3)(a).(iii).
 Amendments or supplementing bail conditions must be
done in the presence of the accused.
 BAIL APPLICATION BY AUDIOVISUAL LINK

 Sections 159A & 159D of the CPA authorises

 Applicant must be older than 18 years old
 Bail application may be heard where the accused is
physically in prison
 Cannot be done where bail is opposed by the
prosecution
 Court may direct, if in the interest of justice, that the
applicant is brought to court