Bail can be granted by 3 parties. By the police, by the prosecutor and lastly, by the court.
Each of these parties may grant a bail application depending on the severity of the offence. Criminal offences are categorized into schedules found in the Criminal Procedure Act 51 of 1977 (CPA) depending on their severity.
The Police may grant bail in terms of section 59 of the CPA for the accused in the lower court where the accused is in custody for any offence other than those found in part 2 or part 3 of schedule 2. Such bail may only be granted by an officer above the rank of a non-commissioner officer after consultation with the investigating officer.
Bail may be granted by the prosecutor in terms of section 59(A) of the CPA for offences listed in schedule 7. The prosecutor may only grant such bail with authorization from the Director of Public Prosecutions (DPP) and must further consult the investigating officer on the matter. Such bail must be applied for prior to the accused’s first appearance. Bail granted by the prosecutor will remain until the first court day of the accused in which the court may either further extend bail or may reconsider the accused’s bail application (where it deems appropriate).
It must be noted that in the event that that police may not grant bail for part 2 or 3 of schedule 2, where such a crime does appear in schedule 7, the prosecutor may grant bail.
Who needs to prove what in a bail matter? According to section 35(1)(f) of the Constitution an accused has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. It is therefore the duty of the state to prove that it is not in the interests of justice that the accused be released on bail. The state therefore leads the evidence.
The rule is met with the exception of section 60(11) of the CPA which states that, when an accused is charged with a schedule 6 offence the accused faces a “reverse onus” and must therefore prove and satisfy the regional court that “exceptional circumstances” exist to permit bail. The same reverse onus is applicable to schedule 5 offenses but the accused need only prove that it is in the “interests of justice” that bail is permitted.
For more information and advice on bail applications, contact Du Toit’s Attorneys on 012 742 0100 or 012 643 1882. Alternatively, you can send an email to: johan@dutoitsattorneys.co.za or hanja@dutoitsattorneys.co.za
