Mmapule Mdluli (Candidate Attorney)
Bail is the sum of money paid to the court or to the police, if the person wishes not to be imprisoned pending the finalisation of their trial. There is usually bail conditions set by the presiding officer that the accused must comply with.
Section 35(1)(f) of our Constitution provides that everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interest of justice permits, subject to reasonable conditions. The continued detention of a person suspected of having committed an offence may be a limitation of an accused right to liberty. An accused shall be released on bail at any stage preceding his or her conviction, if the court is satisfied that the interest of justice permits.
When do the interests of justice permit release?
When applying for bail the accused must convince the presiding officer of the following factors listed in section 60(4) (a) – (e) of the Criminal Procedure Act 51 of 1977 as amended: –
- That he will attend all his court hearings and will not evade his trial;
- That he is not a danger to other people and himself;
- That he will not commit further crimes;
- That he will not intimidate any witness in the matter;
- That he will not undermine or endanger the functioning of the justice system; and
- That he will not disturb public order or undermine public peace and security.
The court must balance the rights of the accused to be presumed innocent and not to be deprived of his or her liberty without just cause. The Criminal Procedure Act 51 of 1977 has various elements which guides the courts in determining whether it is in the interest of justice to grant bail.
Our Courts are known to deny bail by giving undue weight to some factors and ignoring others, amongst others, the denial of bail on the basis of a lack of a verifiable fixed residential address. Denial of bail in the abovementioned ground is discriminatory in terms of the relevant Constitutional rights. The freedom and security of any person is of paramount importance. Bail inquiries are not always fair. Granting of a bail is not a favour nor its denial a form of punishment either. A bail is a Constitutionally guaranteed right in the Bill of Rights.
Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.