TLI4801 ASSIGNMENT 2 2026
DUE 9 SEPTEMBER 2026
1. Allan Fuse is arrested on a charge of arson. He was seen by witnesses setting
fire to an office building in the Durban CBD. The building burnt down and
extensive property was damaged because of the fire. Fortunately, staff were
evacuated in time, and no one was injured. After his arrest, Mr. Fuse phones his
attorney, Mr. Brut Hum, from the police holding cells and says to him: “I have
been arrested, get me out of jail.”
QUESTION 1
Critically discuss whether prosecutorial bail may be applied for the releaseof the
accused, Allan Fuse in this instance.
(a) Prosecutorial Bail for Allan Fuse
Prosecutorial bail, regulated by section 59 of the Criminal Procedure Act 51 of 1977
(CPA), allows a prosecutor to release an accused on bail before the accused's first
court appearance, provided certain conditions are met.¹
Section 59A of the CPA provides for the prosecutor to authorise the release of an
accused person on bail for offences listed in Schedule 7 of the Act.² However, section
59(1)(a) specifically excludes Schedule 1 offences from prosecutorial bail, and arson is
listed in Schedule 1.³
¹ Section 59, Criminal Procedure Act 51 of 1977.
² Section 59A, Criminal Procedure Act 51 of 1977; Maharaj, A. Confident Criminal Litigation (2010) at 2.
³ Section 59(1)(a), CPA; Schedule 1 includes arson.
,In the case of Allan Fuse, who is charged with arson, the statutory exclusion is clear: a
prosecutor may not release an accused on bail if the offence is listed in Schedule 1.⁴
The Constitutional Court in S v Dlamini 1999 (4) SA 623 (CC) emphasized that bail is an
important component of the right to freedom and the presumption of innocence, but also
recognized that the state may restrict this right where the interests of justice require it.⁵
The serious nature of arson, particularly where extensive property damage occurred,
justifies the exclusion from prosecutorial bail.
⁴ Marnewick, CG. Litigation Skills for South African Lawyers 4th ed (2019) at 28.
, section 59(1A) requires the accused to be in custody and the prosecutor must be
satisfied that the accused is not a flight risk and that the interests of justice permit
release.⁶ However, as arson is a Schedule 1 offence, these considerations become
academic because the statutory exclusion applies.
Therefore, prosecutorial bail cannot be applied for in Allan Fuse's case. The accused
must apply for bail in court in terms of section 60 of the CPA, where the court will
consider various factors.⁷
(b) Factors/Grounds for Releasing an Accused on Bail
Section 60 of the CPA sets out a comprehensive framework for bail applications, which
is informed by constitutional principles and the interests of justice.⁸
1. The Interests of Justice Test (Section 60(4))
The court must consider whether the interests of justice permit the release of the
accused. Section 60(4) lists grounds where the interests of justice do not permit
release:
⁵ S v Dlamini 1999 (4) SA 623 (CC) para 48.
⁶ Section 59(1A), Criminal Procedure Act 51 of 1977.
⁷ Section 60, Criminal Procedure Act 51 of 1977.
⁸ Section 60, Criminal Procedure Act 51 of 1977.
DUE 9 SEPTEMBER 2026
1. Allan Fuse is arrested on a charge of arson. He was seen by witnesses setting
fire to an office building in the Durban CBD. The building burnt down and
extensive property was damaged because of the fire. Fortunately, staff were
evacuated in time, and no one was injured. After his arrest, Mr. Fuse phones his
attorney, Mr. Brut Hum, from the police holding cells and says to him: “I have
been arrested, get me out of jail.”
QUESTION 1
Critically discuss whether prosecutorial bail may be applied for the releaseof the
accused, Allan Fuse in this instance.
(a) Prosecutorial Bail for Allan Fuse
Prosecutorial bail, regulated by section 59 of the Criminal Procedure Act 51 of 1977
(CPA), allows a prosecutor to release an accused on bail before the accused's first
court appearance, provided certain conditions are met.¹
Section 59A of the CPA provides for the prosecutor to authorise the release of an
accused person on bail for offences listed in Schedule 7 of the Act.² However, section
59(1)(a) specifically excludes Schedule 1 offences from prosecutorial bail, and arson is
listed in Schedule 1.³
¹ Section 59, Criminal Procedure Act 51 of 1977.
² Section 59A, Criminal Procedure Act 51 of 1977; Maharaj, A. Confident Criminal Litigation (2010) at 2.
³ Section 59(1)(a), CPA; Schedule 1 includes arson.
,In the case of Allan Fuse, who is charged with arson, the statutory exclusion is clear: a
prosecutor may not release an accused on bail if the offence is listed in Schedule 1.⁴
The Constitutional Court in S v Dlamini 1999 (4) SA 623 (CC) emphasized that bail is an
important component of the right to freedom and the presumption of innocence, but also
recognized that the state may restrict this right where the interests of justice require it.⁵
The serious nature of arson, particularly where extensive property damage occurred,
justifies the exclusion from prosecutorial bail.
⁴ Marnewick, CG. Litigation Skills for South African Lawyers 4th ed (2019) at 28.
, section 59(1A) requires the accused to be in custody and the prosecutor must be
satisfied that the accused is not a flight risk and that the interests of justice permit
release.⁶ However, as arson is a Schedule 1 offence, these considerations become
academic because the statutory exclusion applies.
Therefore, prosecutorial bail cannot be applied for in Allan Fuse's case. The accused
must apply for bail in court in terms of section 60 of the CPA, where the court will
consider various factors.⁷
(b) Factors/Grounds for Releasing an Accused on Bail
Section 60 of the CPA sets out a comprehensive framework for bail applications, which
is informed by constitutional principles and the interests of justice.⁸
1. The Interests of Justice Test (Section 60(4))
The court must consider whether the interests of justice permit the release of the
accused. Section 60(4) lists grounds where the interests of justice do not permit
release:
⁵ S v Dlamini 1999 (4) SA 623 (CC) para 48.
⁶ Section 59(1A), Criminal Procedure Act 51 of 1977.
⁷ Section 60, Criminal Procedure Act 51 of 1977.
⁸ Section 60, Criminal Procedure Act 51 of 1977.
