What is Bail and How Does it Work?

Misconception

There is a misconception amongst some public citizens about what bail is and how it applies or works in the South African criminal law system. Some individuals believe that the granting of bail, means that an accused pays a sum of money and then in released as if they have paid a fine for their crime.

This is in fact not the case and in such an instance such a fine would either be an admission of guilt fine or a court sentence to a fine. Payment of bail money does not mean an accused person is then free from the alleged crime committed.

Granting of bail must also not be seen to be a reflection of the state’s case against the accused. Neither does bail granted imply acquittal nor withdrawal of the case against the accused.

So what is bail then?

Due to the fact that in South Africa, all accused are innocent until proven guilty beyond any reasonable doubt, all accused persons are afforded the opportunity to request bail. Below the different forms of bail are explained.

As an accused person is presumed innocent until a court decides otherwise, they are sometimes afforded an opportunity to pay a sum of money not to be held in custody during the court process.

This means that if it is deemed fair and reasonable for an accused to be granted bail, such an accused will put up bail money as collateral for their release during the court process.

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

Is an accused a free person after paying bail?

Well, yes and no. An accused will be free in the sense that they will not be kept in custody during the court proceedings, and no, in the sense that they will still be facing criminal prosecution as well as potential jail time should they be found guilty of the alleged crime committed.

This is beneficial to both the accused person’s right to a fair trial as well as the overcrowded prison system.

What happens to the bail money?

Bail money paid either to the court or to the police. 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. Such bail conditions will be set if and when bail in granted.

Who can grant bail?

At the time of arrest for an alleged offence, the police have the discretion to grant the accused bail at the police station before appearance in court. Bail conditions will be set and the accused will be warned to appear in court on a given date.

Should bail be refused by the police, an accused’s legal representative may request bail by a public prosecutor at the police station in certain instances. Again, bail will be paid and conditions will be set, should the prosecutor grant bail.

Lastly, if the accused is not granted bail at the police station, bail may be granted at the first court appearance. Should bail then be denied, a formal application for bail may be prepared by the accused’s legal representative. The court will also set bail conditions as it deems fit.

Conclusion

Criminal matters can be overwhelming for both the accused person and their friends and family. If you have any questions relating to bail or criminal proceedings, give us a call and we will endeavour to assist you with your matter.