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. Section 35 (1) (f) – Constitution of the Republic of South Africa
Everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause and not to be detained without trial. Section 12 (1) (a) & (b) – Constitution of the Republic of South Africa
CHAPTER 9 OF THE CRIMINAL PROCEDURE ACT DICTATES THE DIFFERENT FORMS AND PROCESSES IN RESPECT OF BAIL APPLICATIONS
SECTION 59 OF THE CRIMINAL PROCEDURE ACT – BAIL BEFORE FIRST APPEARANCE (POLICE BAIL)
An accused arrested and detained for a minor offense not referred to in Part I or Part II of Schedule 2 may, before his or her first appearance be granted released on bail.
The word “may” creates a discretion by the Police Official to do so. It is therefore imperative, even in what can be regarded as trivial offense, for the accused to brief a competent and knowledgeable defence attorney.
A criminal defence attorney through experience and knowledge would be in a position to place enough pressure on the SAPS for the discretion above to turn in the accused’s favour.
SECTION 59A OF THE CRIMINAL PROCEDURE ACT – ATTORNEY-GENERAL MAY AUTHORISE RELEASE ON BAIL (PROSECUTORIAL BAIL)
An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of certain less serious offenses referred to in Schedule 7 and after consultation with the investigating officer authorise release of the accused on bail.
Once again because of the discretion created by the word “may” appointing a competent legal practitioner cannot be over stressed. An on-duty prosecutor has to be convinced to attend the police station in question and that the interest of justice would be served for the detainee to be released on bail.
BAIL APPLICATIONS IN COURT (FORMAL BAIL APPLICATIONS)
If an accused is detained for an offense for which police or so-called prosecutorial bail is not an option a formal bail application will have to be made in Court, normally at the first appearance.
Care needs to be taken to approach this formal bail application correctly as one only have one chance to get it right. Accused may not bring multiple bail applications if the first application is unsuccessful. One can only bring a second bail application on new facts.
Therefore, ensure you appoint a defence attorney (someone that specialises or has extensive experience in Criminal Matters) and not just a general attorney or legal practitioner.
The offence you are charged with may also fall under Schedule 5 or 6 which shifts the burden on you to prove that the interest of justice justifies your release on bail.
Finalising a criminal matter in certain instances can take years. As you don’t want to be incarcerated for such trial period ensure you take bail seriously and obtain an expert defence attorney to assist.
CONSIDERATIONS
Bail proceedings are non-penal in nature and may not be used to punish a accused. The accused must be informed of his rights including his right to remain silent and should preferably exercise same. Employing an attorney in the early stages of prosecution (including bail proceedings) will ensure that the accused’s rights remain protected and that his trial is not prejudiced by events leading up to trial.
GOLDEN RULES WHEN A PERSON IS ARRESTED.
- Contact a Legal Representative in the form of a Criminal Defense Attorney immediately.
- Make use of your right to remain silent and right to Legal Representation.
- Do not admit to any of the charges against you and retain a Professional opinion prior to any admissions.
- Be patient and polite especially until your attorney arrives, you can damage your own matter in respect of Police Bail if you are not patient and polite.
- Never resist arrest and make your submissions respectfully.
WHY MAKE USE OF OUR SERVICES
Our Criminal Law matters, including the Bail Proceedings as described above, are handled by our criminal law specialists (Defence Attorneys) experienced in criminal litigation with an in-depth knowledge of all areas related to criminal law and procedure.
FOR URGENT ASSISTANCE OR AFTER HOUR BAIL APPLICATIONS:
Rikus Stander 079 840 4717
Gert Agenbag 079 898 1454
