Understanding the bail process

Many South Africans are often confused about what bail means and how it features in the criminal justice system.

There are often questions about who qualifies for bail and what happens to the money paid during this process. Here’s some information to help you better understand bail.

What is bail?

Bail is money paid to the court or to the police. By paying bail an accused can go home until the date of their court case. Once the case has been heard, bail money is paid back to the accused even if they are found guilty. Bail money will not be paid back if the accused fails to appear in court, if there is witness interference or if bail conditions are broken.

What is the purpose of bail?

The purpose of bail is to afford those who qualify the chance to be freed from jail until their trial. Bail also ensures that a person comes back to court for trial.

When can the accused person apply for bail?

The accused person can apply for bail at any stage of the court proceedings when they are before the court. Normally the accused is brought before a court within 48 hours of arrest and this is when a person can then apply to be released on warning or bail if the case is not finalised on that day.

What is the effect of bail granted?

By paying bail the accused promises to come to court for future hearings of the case and agrees that if they do not return, the money paid as bail may be forfeited to the state. In turn, the accused is then released until the next date that the case is again heard before court, until the case is finalised.

When applying for bail, what must the accused comply with?

When applying for bail the accused must convince the judge or magistrate that they will not run away, not be a danger to others, will not any commit further crime, and will not intimidate any witness in the case.

If an accused is released on bail they will receive a written notice. This notice will inform the accused of the pending court appearance and indicate the day and the time that they are required to appear in court. The written notice will also outline any conditions, if any, such as the accused must report to the police station every week.

What is required during a bail hearing?

The prosecution will prove that the accused is linked to the criminal offence that the person is charged with. The defense will present factors, which will assist the accused to get bail.

How long will a bail hearing take?

This depends on whether the parties, being the defense and the prosecution, wish to call witnesses. The number of witnesses they intend calling usually increases the time spent during a bail hearing.

Is the granting of bail a reflection of the case?

No. Granting of bail must not be seen to be a reflection of the state’s case against the accused. Neither does bail granted imply acquittal or withdrawal of the case. Even when bail is granted,the accused will still face the charges in a court of law when a trial date is set.

Do you get a receipt when paying bail?

On paying bail, one must be issued with a receipt. Only a person with a receipt for the bail will be reimbursed once the trial is complete.

Is the bail money refundable?

When the court case is over, the bail money is paid back even if the accused is found guilty.

Bail money will however not be paid back, if the accused does not come to court on the day of their court case, or if they break any of their bail conditions such as if they interfere with any witnesses.

If an accused does not appear at court the bail will be forfeited to the state unless convincing reasons can be provided as to why the person could not be at the court when they were supposed to.

Can communities take legal action against an accused?

In cases, where applicable, members of the community can bring information to the attention of the investigating officer that would assist the prosecution in opposing any bail application by an accused person.

Where bail has been granted with conditions, community members can bring to the attention of the investigating officer any breach of such conditions in order for the prosecutor to apply for the revocation of bail.

*Samona Naidu works for the Department of Department of Justice and Constitutional Development.