How to apply for bail in South Africa

Bail is the release of an arrested person, usually on conditions, while the case runs. There are three routes to it. A police official may grant bail at the station for less serious offences before your first court appearance. A prosecutor may grant bail before that first appearance for certain offences. Otherwise a court decides, and the question the court asks is whether the interests of justice permit your release on reasonable conditions.

The right to be released on reasonable conditions where the interests of justice permit is part of section 35 of the Constitution of the Republic of South Africa, 1996. The procedure sits in the Criminal Procedure Act 51 of 1977. If you need help now, Legal Aid South Africa is on 0800 110 110.

What bail is, and what it is not

Bail is money or a set of conditions that secures your attendance at court. It is not a fine, it is not a punishment, and paying it admits nothing.

If you attend every appearance and obey the conditions, bail money is returned at the end of the case whatever the outcome. If you fail to appear, the money can be forfeited and a warrant can be issued. Skipping court is itself an offence.

Conditions are common and can include reporting to a police station on set days, staying away from complainants and witnesses, handing in a passport, staying at a fixed address, and not going near a particular place.

The three routes to bail

Police bail. For less serious offences a police official at the station may release you on bail before your first court appearance. This is the fastest route and it can mean going home the same day. Ask about it directly and politely.

Prosecutor bail. For certain offences a prosecutor may grant bail before your first court appearance. This usually happens through the police station in consultation with the prosecutor on duty.

Court bail. For everything else, a court decides. This can happen at your first appearance, or the matter can be postponed for a formal bail application so that the investigating officer can file an affidavit and the defence can prepare.

Schedule 5 and Schedule 6

The Criminal Procedure Act 51 of 1977 groups offences into schedules, and two of them change who has to persuade whom.

For most offences, the state carries the burden of showing why you should not be released. For a Schedule 5 offence, that flips: you must satisfy the court that the interests of justice permit your release. For a Schedule 6 offence, the bar is higher again: you must show exceptional circumstances which in the interests of justice permit your release.

Schedule 6 covers the gravest matters. Schedule 5 sits below it. Which schedule you fall into depends on the charge and sometimes on your record, and it is the single most important thing to establish early, because it decides how much work the bail application will be. See the difference between Schedule 5 and Schedule 6 bail.

What a court weighs up

A court is trying to predict behaviour, not to decide guilt. In broad terms it looks at:

• whether you are likely to attend your trial
• whether you are likely to interfere with witnesses or evidence
• whether you are likely to commit further offences while on bail
• whether you might undermine or jeopardise the criminal justice system
• whether releasing you could disturb public order or public peace
• your own interests, including your work, your dependants and how long you may sit in custody

This is why proof of a fixed address, a job and family ties matters so much. They are the facts that answer the question "will this person come back?"

A worked example

The names and facts here are illustrative only and are not a real case.

Nomsa is arrested on a Tuesday morning on a theft charge. At the station she is told that police bail is not available on her charge, so she will be taken to court.

Her brother spends Tuesday afternoon collecting what the court will want: her identity document, a municipal bill in her mother's name with an affidavit confirming Nomsa lives there, her latest payslip, a letter from her employer saying her job is open, and the identity document of an uncle who is willing to stand as surety and to attend court.

On Wednesday Nomsa appears. She tells the magistrate she wants a lawyer and cannot afford one, and a Legal Aid practitioner is appointed. The state does not oppose bail but asks for reporting conditions. The magistrate sets an amount, adds a condition that Nomsa report to her local police station on Fridays and not contact the complainant, and postpones the matter.

Had the charge been more serious, the same appearance would have ended differently: a postponement for a formal bail application, affidavits from both sides, and a hearing a week or so later. The preparation her brother did would have mattered even more.

What to do in the first 48 hours

1. Establish what the charge is and write it down exactly.
2. Ask whether police bail or prosecutor bail is available on that charge.
3. Say at your first appearance that you want a lawyer and cannot afford one if that is the case. Say it out loud, on the record.
4. Get someone outside to collect the bail bundle listed below. This is the single most useful thing a family member can do.
5. Find a surety who has identification, an address and the ability to be in court.
6. Do not contact the complainant or any witness. Not to apologise, not to explain, not through a friend. It is the fastest way to lose bail.
7. Keep silent about the facts. A bail application is about your circumstances, not about whether you did it.
8. Diarise the next court date the moment it is given.

What to take or send to court

• Identity documents for you and for your surety
• Proof of residential address: a municipal account, a lease, or an affidavit from the owner of the property confirming you live there
• Proof of employment or income: a payslip, a letter from an employer, or proof of a business
• Proof of dependants, such as birth certificates of children in your care
• A passport, if you have one, so it can be handed in if the court asks
• Medical records or a prescription if you have a chronic condition
• Contact numbers, including a cellphone number that actually works

Bring originals plus copies. A missing address confirmation is a common reason for a bail application to stand down to another day.

A realistic timeline

Same day. Police bail, where the offence allows it.

Within 48 hours. Your first court appearance. If the 48 hours expires outside ordinary court hours or on a day that is not a court day, it extends to the end of the first court day after that.

At the first appearance. Bail may be granted, opposed, or postponed for a formal application. Uncontested bail on a less serious charge is often dealt with on the day.

A formal bail application. Usually set down within days to a week or two, depending on the court roll and on how quickly the investigating officer files an affidavit.

A refusal. A new application can be brought where circumstances have changed, and a refusal can be taken on appeal to a higher court. Both take time.

Common mistakes and what they cost

Arriving with no proof of address. The court cannot verify where you live, so it cannot be confident you will return. This costs people their bail more often than anything else.

Lying about your address, your name or your previous convictions. It will be checked. Being caught out destroys the one thing a bail application runs on, which is credibility.

Contacting the complainant. It looks like interference with a witness even when it is meant kindly, and it can lead to bail being cancelled.

Missing a court date. The money can be forfeited, a warrant can be issued, and failing to appear is a separate offence.

Treating bail money as a payment for the case. It is returned if you comply, and it does not make the charge go away.

Your rights and the state's powers, side by side

You have the right to apply for bail, to be released on reasonable conditions where the interests of justice permit, to be told what you are charged with, to legal representation and to a legal practitioner at state expense where substantial injustice would otherwise result, to lead evidence and give an affidavit in your bail application, to reasons for a refusal, to bring a fresh application where your circumstances change, and to appeal a refusal to a higher court.

The state may oppose bail and lead evidence from the investigating officer, ask for conditions such as reporting or the surrender of a passport, ask the court to place you in a Schedule 5 or Schedule 6 bracket, apply for bail to be cancelled if you breach a condition, and appeal a decision to release you. The state may not hold you past the 48 hour rule without bringing you to court, and it may not treat your silence about the facts as a reason to refuse bail.

If you cannot afford an attorney

Tell the court. The magistrate must be told that you want a lawyer and cannot afford one. Do not assume anyone else will say it for you.

Legal Aid South Africa on 0800 110 110 represents accused people in criminal matters, subject to a means test based on your income and household circumstances. It operates under the Legal Aid South Africa Act 39 of 2014, and practitioners are often based at the court. See Legal Aid, and do I qualify for legal aid in a criminal case.

University law clinics give free advice and can sometimes assist with bail. Phone the law faculty of your nearest university.

The Independent Police Investigative Directorate, under the Independent Police Investigative Directorate Act 1 of 2011, deals with police misconduct. That is separate from your bail application.

For private fees, see what a criminal matter costs.

Frequently asked questions

The most common question is how much bail costs. There is no fixed figure. A court sets an amount on the facts, taking your means into account, and anyone quoting a standard price for a charge is guessing. People also ask whether a previous conviction blocks bail. It does not automatically, but it is relevant. They ask whether bail money comes back, and it does if you comply and attend every appearance, whatever the outcome. They ask what happens if bail is refused, and the answer is that you can apply again if your circumstances change, or appeal to a higher court.