Bail checker

Somebody has been arrested and the family is standing at a police station counter with no idea what to ask for. Almost everything that matters over the next two days turns on a single question that nobody has explained to them: which schedule does the charge fall into?

That one classification decides three separate things at once. Whether anyone other than a court can release the person at all. How quickly it can happen. And, most importantly, whether the State has to justify keeping them in custody or they have to justify their own release. This checker works out all three.

What this tool works out and who it is for

You answer three questions: how the charge has been classified, how many hours ago the arrest happened, and whether the person was already out on bail in another case.

The result tells you who may grant bail before the first court appearance, when that appearance must happen, who carries the burden of proof, and what the court will actually be deciding. It is written for the family and friends who are trying to help in the first forty-eight hours, which is when the decisions that matter get made and when almost nobody has a lawyer yet.

It does not predict whether bail will be granted. Bail is discretionary, it turns on the facts of the person and the case, and two people charged with the same offence routinely get different answers.

The three routes to release

Police bail, under section 59. For less serious offences, an officer of or above the rank of non-commissioned officer may release an arrested person on bail at the police station, in consultation with the investigating officer, before any court appearance. It is not available for the offences listed in Parts II and III of Schedule 2, and it is a discretion rather than a duty. This is the fastest route out and it is the one most families do not know to ask about.

Prosecutor bail, under section 59A. For Schedule 7 offences, the Director of Public Prosecutions, or a prosecutor authorised in writing, may release the person before the first court appearance. Schedule 7 is the middle band: culpable homicide, assault with intent to do grievous bodily harm, arson, housebreaking, public violence, malicious injury to property, possession of drugs, and theft, robbery, fraud, forgery or uttering where the amount involved does not exceed R20 000.

Court bail, under section 60. Everything else, and everything where the first two routes were not used. This happens at the first appearance or shortly after it.

Who has to prove what

This is the part that decides most bail applications, and it is counter-intuitive.

Ordinarily, the State carries the burden. You are presumed innocent and entitled to release unless the prosecution shows that the interests of justice require your detention. That is the default position and it reflects the constitutional right to be released from detention if the interests of justice permit.

For a Schedule 5 offence, the burden flips onto you. Section 60(11)(b) requires the accused to satisfy the court that the interests of justice permit release. Schedule 5 covers murder that was not premeditated, attempted murder, rape falling outside the Schedule 6 categories, dealing in or smuggling firearms, drug offences above roughly R50 000 in value, and fraud or theft above roughly R500 000.

For a Schedule 6 offence, the burden flips onto you and the standard rises. Section 60(11)(a) says the court shall order that the accused be detained in custody unless the accused adduces evidence satisfying the court that exceptional circumstances exist which, in the interests of justice, permit release. Schedule 6 covers planned or premeditated murder, the murder of a police officer or a witness, murder committed in the course of rape or of robbery with aggravating circumstances, rape that was repeated or committed by more than one person or on a child, robbery involving a firearm, and terrorism offences.

There is a fourth trap. A Schedule 1 offence allegedly committed while already out on bail for another Schedule 1 offence pulls the case into the section 60(11)(b) reverse onus, even though the new charge on its own would not have.

What "exceptional circumstances" actually means

Almost every unsuccessful Schedule 6 bail application fails on this point, because people expect it to mean hardship. It does not. Courts have repeatedly held that exceptional circumstances are not established by sympathy, by the strength of an argument, or by the ordinary consequences of being in custody. Losing your job, having children who need you, being the only earner, having a sick parent: these are the normal incidents of imprisonment and they are common to almost everybody in the cells.

What courts have accepted is verified, objective fact. A demonstrably weak state case. Serious ill health that the correctional facility cannot manage. Evidence that the accused was not there. The common feature is that it is proved by documents and testimony rather than asserted from the dock, and that it is genuinely out of the ordinary run of cases.

Because the difference between Schedule 5 and Schedule 6 is so consequential, the classification itself is worth fighting about. Prosecutors sometimes charge a matter as Schedule 6 when on the facts it belongs in Schedule 5, and a court is entitled to decide for itself which schedule applies rather than accepting the label on the charge sheet.

The 48-hour rule

Section 50(1)(d) requires that an arrested person be brought before a court as soon as reasonably possible, and in any event within 48 hours of the arrest.

The extensions are what surprise people. If the 48 hours expire outside ordinary court hours, or on a day that is not a court day, the period runs until the end of the next court day. That is why an arrest on a Friday evening routinely means a Monday appearance and nothing has gone wrong. Outside those extensions, continued detention without an appearance is unlawful, and a lawyer can approach a court about it immediately.

The 48 hours are also the window for police bail and prosecutor bail, because both must happen before the first court appearance. Once the person is in front of a magistrate, those routes have closed.

What the court is actually deciding

Section 60(4) sets out the grounds on which detention may be found to be in the interests of justice. The court asks whether there is a likelihood that the accused will endanger anyone or commit a Schedule 1 offence; will attempt to evade trial; will attempt to influence or intimidate witnesses or conceal or destroy evidence; will undermine or jeopardise the objectives or proper functioning of the criminal justice system; or, in exceptional circumstances, whether release would disturb the public order or undermine the public peace or security.

The practical lesson is that a bail application is not a mini-trial about guilt. Arguing that you are innocent is rarely what moves a bail court. Addressing the five grounds is: a fixed address, verified employment, family ties, a surrendered passport, no previous failures to appear, a willingness to report to a police station, and a bail amount the person can actually raise.

Worked example

This example is illustrative. Lerato is arrested at 9pm on a Friday and charged with assault with intent to do grievous bodily harm after a fight outside a tavern. Her sister phones every attorney she can find on Saturday and gets no answer.

The tool classifies this as a Schedule 7 offence. That means the police cannot release her under section 59, but a prosecutor can under section 59A, before her first court appearance. It also means that when she does reach court, the ordinary onus applies: the State has to justify keeping her in, not the other way round.

On the 48 hours, the period from 9pm Friday expires at 9pm on Sunday, which is neither a court day nor court hours, so it runs to the end of the first court day, which is Monday. Her detention until Monday is lawful and the family should not spend the weekend believing something has gone wrong.

What her sister can usefully do on Saturday is find out the name of the investigating officer, ask whether the prosecutor will consider section 59A bail, gather proof of Lerato's address and employment, and phone Legal Aid South Africa on 0800 110 110. Had the charge instead been classified as Schedule 5 or 6, none of the pre-court routes would have existed and the whole effort would have gone into preparing for a court application with the burden reversed.

What the tool does not cover

It does not tell you the bail amount, which is set by the court on what the accused can realistically raise, and which is not meant to be punitive. It does not deal with bail pending appeal after conviction, which is a different and harder application. It does not cover children in conflict with the law, who fall under the Child Justice Act 75 of 2008 and a separate release regime. It does not classify your specific charge for you, and it is not a substitute for asking the investigating officer or the prosecutor which schedule they say applies.

When to get advice

Immediately, in every case, and certainly before a Schedule 5 or Schedule 6 bail application. You are entitled to a legal practitioner from the moment of arrest and entitled to be informed of that right. If you cannot afford one, Legal Aid South Africa provides one at state expense where the interests of justice require it, and a bail application in a serious matter ordinarily qualifies. Our free legal help page explains the means test, and our criminal record expungement checker sets out what a conviction means afterwards.

The single most valuable thing a family can do in the first day is stop looking for someone to blame and start collecting the documents a bail court will want: proof of residence, proof of employment, identity documents, and a person willing to stand as surety.

Frequently asked questions

Is bail a fine?

No, and it is not a punishment either. It is money lodged to secure the accused's attendance at court. It is repaid in full at the end of the case, whatever the verdict, provided every appearance was attended. If the accused fails to appear, it is forfeited and a warrant is issued.

Can bail be refused for a minor offence?

Yes, though it is unusual. The section 60(4) grounds apply to every offence. Someone with a history of failing to appear, or who is likely to interfere with a witness, can be refused bail on a relatively minor charge.

What happens if bail is refused?

It is not final. You can bring a fresh application if new facts emerge, and "new facts" is interpreted practically: a changed address, a surety who has come forward, a passport now surrendered. You can also appeal a magistrate's refusal to the High Court under section 65.

Can someone else pay the bail?

Yes. A third party can deposit bail money and is entitled to its return on the same terms. That person should get and keep the receipt, because the refund is paid against it at the end of the case.

Does paying bail mean the case is over?

No. Bail only governs whether the accused waits for trial in custody or out of it. The charge continues, the trial dates continue, and every appearance must be attended.