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Police Bail      

Police Bail is a procedure whereby a person can ensure their release from jail pending their first Court appearance – for crimes that are not serious in nature.

The crimes for which persons may not secure Police Bail are set out in Parts II and III of the Schedule 2 of the Criminal Procedure Act. These crimes include all serious common law crimes and statutory crimes relating to drug offences and offences relating to fraud of a monetary value – determined by The Minister from time to time. the coinage.

It is important to note three things:

  • Police Bail is non-penal in nature. This means it is not meant as punishment but as a means to ensure that the Accused will attend their Court hearing on the date specified;
  • Police Bail can only be granted before the Accused has had their first appearance in Court. Once the Accused has appeared in Court, the power to release the Accused on bail lies outside the power of the Police;
  • Police Bail is only granted in respect of relatively trivial offences where the Accused is not a danger to society should they be released and there is a reasonable expectation that they will return to appeal at Court on the allocated day and time.

The reason that such a procedure exists is to promote the right that all accused persons have to be presumed innocent until proven guilty. The procedure is used to allow persons, arrested for relatively trivial crimes to be freed from the burden of having to spend time in jail.

Any official of or above the rank of non-commissioned officer may grant bail according to the above-mentioned provisions under a number of regulations:

The first of these is that the Police Official empowered to grant such bail must have consulted with the Investigating Officer in respect of such matters.

Secondly the money should be deposited in cash with the Police Official, once such Official has set the amount that is to be paid. Sureties cannot be accepted.  

The Police may not use the threat of not granting bail in order to coax a confession from the Accused. Every Accused has the right not to answer any questions asked by any person upon arrest of the Accused.

Every Accused has the right to be represented by an Attorney in respect of all matters after arrest, and may not be coerced or forced into making any statements that contradict either of the above two rights. (Section 35 of the Constitution of South Africa, 1996).

Further every Accused has the right to appear in Court within 48 hours after being arrested. If the 48 hours falls over a weekend then the weekend will not be included in the calculation of 48 hours.

If a person has been arrested, that person’s first priority should be to secure the services of an Attorney. The Attorney is familiar with the procedure that needs to take place and can assist in the processing of the Charge and Bail Application.

There exists a presumption that a theoretically innocent person should not be deprived of their liberty and, as such, an Application for Police Bail   should not be frustrated by a demand for an excessive amount of money or be arbitrarily refused.

An Attorney is normally able to negotiate a much fairer bail price as Attorneys have knowledge of the Law and are far less likely to be taken advantage of. They therefore have the best opportunity to secure Bail at a reasonable price and within a reasonable time.

Police Bail having been granted and the amount having been paid, the Accused is free to leave the holding cells of the Police Station where they were being held and are required to present themselves for the Court Hearing at the appointed time and date.

An Attorney is normally able to negotiate with the Police Official so as to set a Court date that is suitable for both parties. This decreases the chances of the Hearing being set at a time that causes inconvenience to the Accused.

Once granted, Police Bail remains in force until the Accused has appeared in Court for the first time. It cannot be made subject to conditions other than the ones that are essential to the granting of bail – i.e. the date and time of the Court appearance.

When the Attorney has applied for bail he is sufficiently familiar with the circumstances surrounding the charge as to be in a good position to effectively represent the Accused in Court, should it be required.

The Police Official must use discretion when granting bail; they have a duty to apply their mind in deciding if bail may be granted and at what price.

The Police can set bail for inter alia the following crimes: common assault, theft (with a value below R2500), crimen iniuria (criminal defamation) and drunken driving.

Prosecutorial Bail

The Public Prosecutor may authorise bail (in respect of Schedule 5 and 6 offences) whereafter the Police may release an Accused when charged with the following crimes:

  • Public violence
  • Culpable homicide
  • Bestiality
  • Assault, involving the infliction of grievous bodily harm
  • Arson
  • Housebreaking, with intent to commit an offence
  • Malicious injury to property
  • Robbery, other than robbery with aggravating circumstances, if the amount involved in the offence does not exceed R20 000
  • Theft, if the amount involved in the offence does not exceed R20 000
  • Illegal possession of dependence-producing drugs
  • Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000
  • Any conspiracy, incitement or attempt to commit any offence referred to in Schedule 7.
  • Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in the offence does not exceed R20 000.

Where a person is charged for a serious offence, only the Court, after hearing a Bail Application during normal Court hours, may grant bail.

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