In terms of Section 35(1) (f) of the Constitution of South Africa, anyone who is arrested for an alleged offence has the right to be released from detention if it is in the interest of justice to do so, and subject to reasonable conditions. Let us say for the purpose of this discussion that you were arrested by a member of the South African Police Service (SAPS) on a Friday afternoon over the festive season and charged with an alleged criminal offence. The important question usually is if you could be released on after-hours bail, or whether you will be held in custody over the weekend. It is important to take note that each case will be dealt with differently because of different merits and sets of facts pertaining to each case. The type of alleged offence will determine the process that must be followed.
How does it work?
- SAPS bail at the SAPS station
Section 59 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (“CPA”) states that bail may be granted before the accused’s first appearance in a lower court if the accused is in custody for offences that are not listed in Part II and Part III of Schedule 2 of the CPA. This type of bail may be granted by a member of the SAPS above the rank of non-commissioned officer. It is advisable that you contact your criminal defence attorney immediately to assist you in the process of obtaining after-hours SAPS bail. Your attorney will negotiate the possibility of bail with the SAPS member and the amount that you will have to pay to the SAPS to be released on bail. This type of after-hours bail will only be granted by the SAPS after consultation with the SAPS officer who is investigating the matter.
After-hours SAPS bail can also be set for the following types of offences:
- Common assault;
- Theft where the value of the goods is below R2 500;
- Crimen injuria;
- Drunken driving and driving under the influence of alcohol;
- Reckless and negligent driving; and
- Bail set by a state prosecutor
The second form of after-hours bail is bail set by a prosecutor who is in the service of the National Director of Public Prosecutions. Section 59A of the CPA empowers a state prosecutor to release an accused on bail after hours in terms of any offence listed in Schedule 7 of the Act. This is subject to the fact that the prosecutor is authorised to do so by the Director of Public Prosecutions. Once again, it is advisable that you contact your criminal defence attorney to assist you in the process. The SAPS will not be able to grant after-hours bail for these types of offences – only a prosecutor can authorise your release on bail, and after consultation with the investigating officer appointed to the matter.
A prosecutor can set after-hours bail for the following offences:
- Public violence;
- Culpable homicide;
- Assault with the intent to inflict serious bodily harm;
- Malicious injury to property;
- Robbery when the amount pertaining to the offence does not exceed R20 000;
- Theft when the amount pertaining to the offence does not exceed R20 000;
- Offences in terms of the illicit possession of dependence-producing drugs;
- Any offence relating to extortion, fraud, forgery or uttering if the amount involved in the offence does not exceed R20 000; and
- Any conspiracy, incitement or attempt to commit any offence referred to in this schedule.
After your arrest and upon arrival at the SAPS station, you must request and demand your telephone call. Phone a relative, your wife or a friend whom you trust with your life. Inform him/her about your arrest and the SAPS station where you are in custody. Request this person to arrange for a criminal defence attorney to meet you as soon as possible at the SAPS station to assist you with an after-hours bail application. Upon the arrival of your criminal defence attorney at the SAPS station, he/she will start the process of negotiating and arranging after-hours bail with the SAPS officer and/or prosecutor that is on after-hours duty.
- Bail set by the court
In case of any other offences that are not listed in paragraph 2 and 3 above, your case will be referred to a court for a formal bail application in terms of Section 60 of the CPA. South African law states that any person who is arrested must be brought before a court within 48 hours of the arrest, where it is reasonably possible to do so. If you are arrested for any offence in terms of Schedule 5 or 6, you will remain in custody until a formal bail application can be brought in a formal court. For example, if you are arrested for an offence in terms of Schedule 5 or 6 of the CPA on a Friday afternoon, you will most probably be in custody until the Monday morning.
Schedule 5 and 6 offences are more serious offences and include for example treason, rape, murder, attempted murder, fraud and/or forgery where the amount or value involved is more than R20 000, to name but a few.
You can read the full list of offences here: http://www.justice.gov.za/legislation/acts/1977-051.pdf.
For assistance in after-hours bail applications, please contact our after-hours number at 087 255 9777.
HFG ATTORNEYS INC.
LEGALLY ARMED PAARL
(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions.)
- Criminal Procedure Act, 1977 (Act No. 51 of 1977)
- Criminal Court Practice, 2017 (LEAD)