After-hour bail: How does it work?

Being arrested at a roadblock late at night for drunk driving for example, is a very traumatic experience for a “first time user”. Understanding the after-hour bail process will inevitably ensure that you deal with the situation better.

Once arrested, the SAPS will read your rights to you in terms of section 35 of the South African Constitution and take you to the nearest police station for processing. Remember, you have the right against self-incrimination, therefore don’t say or sign anything without you attorney present.

Once arrested, you must be released on bail if you meet the requirements or be taken to court within 48 hours after arrest for your first court appearance.

Essentially there are three types of bail applications in the South African Criminal Justice System:

Bail granted by the South African Police in terms of section 59 of the Criminal Procedure Act, Act 51 of 1977, as amended. (“the act”)
Bail granted by a prosecutor, representing the Director of Public Prosecutions (“DPP”) in terms of section 59A of the act.

Bail not granted by SAPS nor the DPP, will be referred to a court within 48 hours where you will be entitled to bring a formal application for bail in terms of section 60 of the act.

Even though the process might sound easy, you will require the services of a Criminal Defence Attorney with the required skills and network of contacts to arrange for after-hour bail.

For purposes of this blog, and explaining how the after-hour bail process works, we will only focus on police and prosecutors bail.

1. Police Bail: Section 59

This type of bail may be granted after the arrest and before the first apperance of the accused in a lower court being the local Magistrate’s Court. An accused may be released on bail on any offence not listed in parts II and III of Schedule 2 of the Act.

This type of bail is usually referred to as “police bail” and can only be granted by a police official above the rank of non-commissioned police officer, and only after proper consultation with the investigating officer. The formal process will be dealt with by your attorney.

Section 59 reads as follows:

“59. Bail before first appearance of accused in lower court.—

(1)

(a) An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.

(b) The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.

(c) The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court which has jurisdiction.

(2) Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first appearance. “

Consequently, police bail, will not be granted for crimes such as:

Murder;
Arson;
Assault;
Sexual assault;
Rape;
Kidnapping
Possession of illegal dependance producing substances or drugs;
Robbery;
Public violence;
Treason; or

Therefore, your more serious offences will be taken to court within 48 hours for a formal bail application should the offence not fall within the ambit of prosecutors bail.

2. Prosecutor Bail: Section 59A

Section 59A of the act, provided that a prosecutor may instruct the release of an accused before his first appearance for any offence listed in schedule 7 of the act. This type of bail can only be granted after consultation with the investigating officer regarding the merits of the case.

Schedule 7 offences on which after-hour bail may be granted are:

Public violence.
Culpable homicide
Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Assault, involving the infliction of grievous bodily harm.
Housebreaking, whether under the common law or a statutory provision, with intent to commit an offence.
Malicious injury to property.
Robbery, other than a robbery with aggravating circumstances, if the amount involved in the offence does not exceed R20 000,00.
Theft and any offence referred to in section 264 (1) (a), (b) and (c), if the amount involved in the offence does not exceed R20 000,00.
Any offence in terms of any law relating to the illicit 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 000,00. Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

Section 59 A reads as follows:

“59A. Attorney-general may authorise release on bail.—

An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.

For the purposes of exercising the functions contemplated in subsections (1)and (3) an attorney-general may, after consultation with the Minister, issue directives.

(3) The effect of bail granted in terms of this section is that the person who is in custody shall be released from custody—

(a) upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his or her bail at his or her place of detention contemplated in section 50 (1) (a);

(b) subject to reasonable conditions imposed by the attorney-general or prosecutor concerned; or

(c) the payment of such sum of money or the furnishing of such guarantee to pay and the imposition of such conditions.

An accused released in terms of subsection (3)shall appear on the first court day at the court and at the time determined by the attorney-general or prosecutor concerned and the release shall endure until he or she so appears before the court on the first court day.

(5) The court before which a person appears in terms of subsection (4)—

(a) may extend the bail on the same conditions or amend such conditions or add further conditions as contemplated in section 62; or

(b) shall, if the court does not deem it appropriate to exercise the powers contemplated in paragraph (a), consider the bail application and, in considering such application, the court has the jurisdiction relating to the powers, functions and duties in respect of bail proceedings in terms of section 60.

(6) The provisions of section 64 with regard to the recording of bail proceedings by a court apply, with the necessary changes, in respect of bail granted in terms of this section.

(7) For all purposes of this Act, but subject to the provisions of this section, bail granted in terms of this section shall be regarded as bail granted by a court in terms of section 60.”

[S. 59A inserted by s. 3 of Act No. 85 of 1997.]

3. Process

After arrest and once you are at the police station, you MUST be given the opportunity to phone your attorney and summon him to the station to assist you in securing bail. If you don’t have his / her number, phone your friend or spouse and request them to contact an attorney.

Once instructed, your attorney will attend to the police station an have a quick consultation with you to obtain instructions about your personal profile to negotiate bail.

Factors to your advantage for securing bail would be for instance: Having permanent ties in the community with a fixed address nearby, having no pending criminal matters and a clean criminal record, health related issues, or the strength of the state’s case.

In the case of police bail, your attorney will negotiate bail with the police officer. Should the police officer refuse arbitrarily to release you on bail, your attorney will approach the station commander for assistance.

In the case of prosecutor’s bail, your attorney will negotiate bail with the prosecutor on after hours duty. A well-seasoned bail attorney will have the list and contact details of the prosecutor on after hour duty and will summon him to the police station. Should he or she refuse to co-operate, approaching the control or senior prosecutor is always an option.

Once bail is set, you will be required to pay the bail money at the police station, whereafter you will receive a notice with the date, time, and place of your first court appearance.

Should you fail to appear in court, your bail will be cancelled and forfeited to the state. The court will also issue a warrant of arrest for your failure to appear, which could lead to further incarceration and criminal charges.

Remember, bail is a right and not a privilege! Bail is not a punitive action, but merely to secure your attendance at court.

Written by Heinrich Gonzales, Director of HFG Attorneys Inc.

Disclaimer

The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

HFG Attorneys in Paarl, Western Cape, specialises in four main areas, including family law, general litigation, criminal defence and firearm law.