This is it, a moment you never thought you’d have to deal with in your life: you’re being arrested. You’re scared, emotional and unsure of what to do. Understandably, you’re not thinking straight, and images of being in a cold jail cell keep flashing in your mind making it almost impossible to think about your legal rights when getting arrested in South Africa. Unfortunately, few people even know what their rights are.

Here’s the thing: you don’t have to face this situation alone. Not only are you entitled to get legal advice and assistance from an attorney, but you don’t necessarily have to stay in jail. You can apply to get released on bail.

South African law maintains that no one may be detained without appearing before a court. Upon being arrested, a person may be kept in a police cell or jail until the trial date has been set and to ensure they will be present for the trial. Here’s a basic guide to getting released on bail in South Africa.

What does getting released on bail mean?

If you don’t want to stay in a cell until the trial starts and finishes, you will need to apply for bail.

As the Criminal Procedure Act points out: “ an accused who is in custody in respect of an offence shall be entitled submit a bail application to be released on bail at any stage preceding his or her conviction in respect of such offence if the court is satisfied that the interests of justice so permits”.

This is a specific amount of money, which is determined depending on the crime someone is accused of, that is paid to the court or police. The person is then temporarily released with or without certain conditions until the start of the trial. These are set by the presiding officer, and the accused must abide by them.

Bail is usually granted to someone who isn’t a flight risk and can be easily reached by the authorities. It’s also worth noting that the bail amount will be paid back, even if the accused is found guilty. There are instances in which bail won’t be refunded, but we’ll get into that later.

Do note: if someone is granted bail, it’s not an indication of innocence or guilt, nor an indicator of how strong or weak the case against the accused is.

Can I ask my lawyer to assist me with paying bail in South Africa?

Absolutely, it’s essential to know that you have the right to legal representation, and the police should inform you of this as well.

Be sure to give your attorney as much information as possible to help you:

  • All your personal details if the lawyer doesn’t have them already
  • Why you have been arrested
  • Where you are being detained
  • The case number
  • The name of the investigating officer

How soon can I apply for bail after I have been arrested?

According to the law, you must be brought in front of a court within 48 hours of being arrested.  Then, you or your legal representative can apply for bail at any stage of the court proceedings.  The bail amount can then be paid at the police station or the court.  A receipt will be given, which specifies your offence and when and where you should appear in court for the first hearing. It’s very important to keep this receipt in a safe place.

What if I cannot afford the bail amount?

You can request a reduction, but if the amount is still unaffordable, you will stay in a facility for the duration of the trial. This is called remand detention.

What are the different types of bail in South Africa?

The Criminal Procedure Act allows for the following types of bail:

Police Bail

  • The accused can apply for bail at the police station
  • This must be done within 48 hours of being arrested
  • The application must be made before the first court appearance
  • This can only be done if the accused has been arrested for a minor offence (theft under R2500, common assault, or possession of certain drugs under a certain number of grams.

Prosecutor Bail

  • An application can be made before the accused makes their first court appearance
  • This kind of bail can also be applied for at the police station but must be made to a Prosecutor who has been authorised by the Director of Public Prosecutions to grant bail for more serious offences.

Court Bail

  • This must be done at the first court appearance or any time during the court proceedings
  • The court can grant the accused bail at any time before conviction
  • If the offence is very serious, the court will only take exceptional circumstances into account
  • The court is allowed to stipulate certain conditions that must be adhered to upon someone being released on bail.

What to expect from a hearing when applying for bail in court

At a bail hearing, the accused and their lawyer must inform the court of any other charges or convictions the accused faced, and if he/she is currently out on bail for a different criminal offence.  The prosecutor in the case will also be expected to state on record why bail shouldn’t be granted, and then the court will take all this information into account before making a decision.  The court may postpone the application, but not for longer than 7 days.

Can bail be denied?

Yes, there are certain circumstances under which the court will not grant the accused bail. These include:

  • The accused is seen as a flight risk, meaning they have the means to leave the country to avoid trial and prosecution
  • The accused is seen as being dangerous to the general public or their immediate community
  • The accused has means to intimidate witnesses and tamper with evidence

Is the bail amount refundable?

Yes- after the court case is over, the person, whether found guilty or not, will be refunded if they present the receipt given to them when they paid initially.

The bail amount will not be refunded if the person doesn’t stick to the bail conditions, misses a court date or interferes with witnesses. The bail amount will then be forfeited to the state.

We’ve got your back!

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