“I recently heard from a friend that her son had been arrested for drunk driving and that it had been quite a traumatic experience for the family to get their son released on bail. I have to admit I know nothing about bail and I am worried that I won’t know what to do to help my own child should he or she be arrested one day. How does bail work and what should I know? ”

The reality is that arrest is much more common than one realises, and it doesn’t necessarily only happen to violent criminals. It is therefore important that one knows the basics of how the process works and what has to happen to get released on bail.

Firstly, it is important to be aware of the different types of bail. Our law makes provision for three types, namely police bail, prosecutor’s bail, as well as court bail.

Police bail:

Police bail is usually fixed after hours by the particular police station where the arrested person is detained, and is only possible when a person is accused of a ‘less serious’ charge, for example drunk driving, common assault or store theft.

To have someone release on police bail, it is firstly important to determine where the person is being detained. It will ordinarily be the police station nearest to where the incident took place. Take proof with of where the person lives and works. As soon as you know where the person is detained, you can approach the relevant police office in command of that station and ask if the person has already been charged. If the person has been charged, the police docket will have a ‘CAS’ number and be allocated to an investigative officer. Ask who the investigative officer is and enquire from him/her if he/she will be willing to fix bail - and if yes, on what basis.

Important to remember is that police bail can only be fixed if a person has a clean criminal record – thus no former offences or pending cases against their name. If police bail cannot be granted, the police may, according to the law, detain a person for 48 hours before the person is brought before court.

Prosecutor’s bail:

Prosecutor’s bail is commonly determined after hours by the particular police station. This type of bail can be fixed for more serious offences, such asn for examplen culpable homicide, assult with the intent of grievious bodily harm, housebreak and theft where the alleged stolen goods don’t exceed R20,000. Prosecutor’s bail may not be fixed for offences such as, for example, murder or rape.

The same process that’s followed with police bail, can be followed here. What differs from police bail however, is that a state prosecutor has to be present during bail fixing. A list of the particular state prosecutors and more specifically which prosecutor is on duty, can be found at your nearest Magistrate’s Court.

It is important to remember that the investigative officer as well as the prosecutor’s permission is required for this type of bail. The state prosecutor may also link any reasonable conditions to the bail, such as that the accused may not contact the complainant, etc.

Court bail:

Court bail is fixed in court in respect of any other offence. In terms of our law a person has to be brought before court within 68 hours, where the person can then apply for bail. This will be the case where police- or prosecutor’s bail had not been permitted or requested.

The process followed during court bail is complex, seeing as there are various factors that the court has to take into account when deciding whether to grant bail or not. Factors the court needs to consider include whether the person has a fixed address, any previous offences and whether the person has any pending cases against him/her.

Important to remember is that the State has the right to postpone any bail application for a period not exceeding seven days, which means the accused will be sent to jail until he/she can be brought before court again. The State may then once again request a postponement for a formal bail hearing.  With the congestion in our courts it can happen that that bail application only takes place in two weeks’ time. To assist with managing the complex process of court bail, and to prevent a person from having to wait for two weeks vir for a bail application it’s important to acquire the assistance of a criminal law specialist. 

If you are the arrested, it is always wise not to just make a statement. Often one is under strain and one’s thoughts are not always clear, in which case it is preferable not to make a statement in such circumstances.  Therefore it is actually advisable in all instances of arrest to acquire the assistance of a criminal law specialist that can help manage the legal process best during this taxing time.

Written by Adriaan Janse van Rensburg, Associate, Phatshoane Henney Attorneys
Criminal Litigation