What happens at a bail appeal?

Bail is refused. The accused is taken down, the family is in the corridor, and the question is what happens now. The answer is one of two things, and they are not interchangeable.

Our guides on how to apply for bail and on Schedule 5 and Schedule 6 bail cover the application itself. This page is about what happens when it fails.

Route one: the appeal

Section 65 of the Criminal Procedure Act 51 of 1977 provides that an accused who considers themselves aggrieved by the refusal of bail by a lower court, or by the imposition of a bail condition, may appeal to the High Court having jurisdiction.

It is an appeal in the true sense. The High Court considers the record of what happened in the magistrates' court, the reasons the magistrate gave, and argument on whether the decision was correct.

The test is narrow. The court hearing the appeal shall not set aside the decision against which the appeal is brought unless it is satisfied that the decision was wrong. If it is so satisfied, it gives the decision which in its opinion the lower court should have given.

That test is the whole point. An appeal is not an opportunity to run the bail application again in front of a different judge in the hope of a different outcome. It is an argument that the magistrate erred: misapplied the law, misunderstood the evidence, gave weight to something irrelevant, or ignored something relevant. A magistrate who weighed the factors properly and reached a conclusion the High Court might not have reached is not thereby wrong.

What an appeal is good for. A refusal that misstated the schedule under which the offence fell. A finding that the accused was a flight risk with no evidence supporting it. A failure to consider the accused's personal circumstances at all. Reasons that do not engage with the case that was actually put up.

What it is not good for. A refusal where the evidence was thin because the accused did not put up enough, or where the magistrate's reasoning was defensible on the record. Those are lost appeals, and they cost weeks.

Route two: new facts

The second route is not an appeal. It is a fresh bail application brought in the same court that refused bail, on the basis that circumstances have changed since the refusal.

The requirement is that the facts are genuinely new: they arose after the first application. Facts that existed at the time of the first application but were not put before the court do not qualify. A new facts application is not a mechanism for repairing a badly prepared first attempt.

What tends to count:

The investigation has progressed. Witnesses have been interviewed and the risk of interference has fallen away. The docket is complete. The State's case has turned out weaker than was suggested at the first hearing.

Delay. The trial has been postponed repeatedly and the accused has now been in custody for a long period with no trial date, which changes the balance.

Changed personal circumstances. A fixed address has been secured where there was none. Employment has been confirmed. A surety has come forward. A serious medical condition has emerged or been diagnosed.

The charge has changed. Where the State has downgraded the charge, the schedule may have changed with it.

Where new facts exist, this route is often faster and more effective than an appeal, because the court is not being asked to find the magistrate wrong; it is being asked to decide a different application on a different record.

Choosing between them

The choice is the whole strategy, and it comes down to one question: was the first decision wrong on the facts as they then stood, or have the facts changed?

The decision was wrong on the record. Appeal.

The decision was defensible but things have since changed. New facts application.

Both. It is possible to pursue both, but doing them in the wrong order wastes time. An appeal takes weeks to prepare, transcribe and set down. If genuine new facts exist, they can be placed before the magistrate much sooner.

Neither. Where the first application was simply weak and nothing has changed, the honest advice is that the way forward is to strengthen the position, meaning to generate new facts, rather than to file something for the sake of it. A failed appeal and a failed new facts application both sit on the record for the next attempt.

What the appeal involves in practice

Notice of appeal, setting out the grounds, filed promptly. The grounds must identify what the magistrate got wrong, specifically.

The record. The bail proceedings must be transcribed, which takes time and costs money. This is the part that determines the timeline.

Reasons. The magistrate provides written reasons if they were not given at the time.

Heads of argument from both sides.

The hearing, before a judge, on the record and the argument. No new evidence is led.

The outcome. Dismissal, or the decision the lower court should have given, which may be bail on conditions.

A realistic timeline for an appeal is measured in weeks, and the accused remains in custody throughout. That is the principal cost of choosing this route where a new facts application would have worked.

The State can appeal too

The prosecution has a corresponding right to appeal against a lower court's decision to grant bail. Where it exercises that right, the accused's release can be affected pending the outcome.

The practical significance for an accused who has just been granted bail after a contested hearing is to expect that possibility and to have the reasons for the grant recorded properly, because the same narrow test applies in reverse: the State has to show that the decision to grant bail was wrong.

What to do while it is being decided

Get the reasons in writing as soon as possible. Everything else depends on them.

Start assembling new facts immediately, whichever route is chosen. Confirm the address. Get the employer's letter. Identify a surety and their means. Obtain medical evidence if it exists. Ask the investigating officer, through your attorney, what stage the investigation has reached and whether witnesses have been interviewed.

Keep the record of custody. Dates, postponements, reasons for each. Delay is a new fact in its own right, and it has to be proved.

Do not make statements from custody about the merits. Our guide on warning statements applies with full force to a person who has just been refused bail and is inclined to explain.

Use Legal Aid if you need it. Legal Aid South Africa is on 0800 110 110, and our guide on qualifying for legal aid in a criminal case sets out the means test. Our bail checker works out which court can grant bail and under which schedule the offence falls.

Worked example

This example is illustrative. A man is charged with a Schedule 5 offence and refused bail. The magistrate finds that he is a flight risk because he has family in a neighbouring country, and that he may interfere with witnesses because two have not yet been interviewed.

The appeal question. Was that decision wrong on the record? He had a fixed address, a job of six years and no previous convictions, and the only evidence of flight risk was the existence of relatives abroad. There is an arguable appeal on the flight risk finding, but the witness interference finding was defensible on what the State said at the time.

The new facts question. Three weeks later the investigating officer confirms that both witnesses have been interviewed and their statements taken. The trial has also been postponed for four months for further investigation.

That changes the strategy. The witness interference ground has fallen away because of events after the refusal, and the delay is a further new fact. A fresh application in the magistrates' court on those facts can be heard within days, whereas the appeal on the flight risk point alone would take weeks to transcribe and set down and would leave the interference finding untouched.

His attorney brings the new facts application, placing the officer's confirmation and the postponement before the magistrate. Bail is granted on conditions including reporting to a police station and surrendering his passport.

Had he instead noted an appeal on the day of the refusal and waited for the transcript, he would have spent those weeks in custody arguing that a magistrate was wrong about witnesses who, by then, had already been interviewed.