Chapter 10: Bail
Prognostic exercise where we consider rights of accused vs interests of
community to have possible offender locked up during trial
Can still remain silent but may be to your detriment because you need to
convince why you should be released
Forms of bail
1) Police bail
- Limited application and usually not for serious offences
- S 59(1)(a) CPA
- May be granted by police official of a certain rank
- May consult with lawyer but unlikely cause they just want to get out quickly
- Not possible for serious common law offences (treason, murder, rape, arson,
kidnapping, theft, fraud, sedition, and assault) S59
Limitations:
- Can only take place before an accused’s first appearance in a lower court (limitation
to ensure courts remain in direct and exclusive control over release on bail once the
case is on the roll).
- Payment of cash is a condition (only cash payments can be received in payment of
police bail) = unique and a limitation
- No other discretionary conditions can be added (such as may not leave house or
correspond with certain people etc… only with other forms of bail)
- Court (if prosecutor applies) can amend the conditions – the police cannot - but
unlikely
2) Prosecutorial bail
- S 59A(3)(b) CPA
- Director of public prosecutions or a prosecutor authorized may authorize the release
of an accused on bail
- Person who is in custody shall be released from custody:
a. upon payment of the sum of money determined for their bail at the place of
detention (can also guarantee to pay. more liberal, not necessarily cash)
b. Subject to the imposition of reasonable discretionary conditions (e.g. leave
house, see people, leave country)
- Condition that is always there = appear before court on certain date
- Prosecutorial bail only lasts until first appearance in court
c. Payment of a sum of money (or the furnishing of such guarantee) AND the
imposition of reasonable conditions
, 3) FOCUS: Bail application in court
- S 60 - First appearance after arrest
- Entitled to be released on bail at any stage prior to conviction, unless court finds it in
interests of justice not to release
- Appeal by accused to HC against a lower court’s decision concerning bail: if accused
is aggrieved that they were denied bail or by the imposition of a certain bail
condition, they may appeal to the HC which has jurisdiction
- May be that you were denied bail at some stage, and you are kept in custody until
conclusion of trial = you can apply for bail at any time again
- If denied in lower court appeal in higher court
- DPP can also appeal bail outcome to HC against decision of a lower court to release
an accused on bail or against the imposition of a condition of bail
- DPP can appeal to SCA against the decision of a superior court to release the accused
on bail
If you appeal you stay where you are whether that’s inside or outside
Bail and jurisdiction of courts:
POV 1: No inherent jurisdiction of courts to grant bail: only statutory function.
POV 2: S v Thornhill “inherent jurisdiction of HC” when statutory provisions do not
authorize the course of release on bail
Appeal power stops with SCA (no court has common law or statutory power to
appeal after the SCA has denied you bail (both POV kind of agree here)
Factors relating to bail application
Risks: freedom and interests of administration of justice cannot be prejudiced by
granting/ refusing bail (S v Thornhill, S v Branco)
NB S60(4) (a)-(e) evaluated in conjunction with guidelines listed in S60(5)-(9)
S v Dlamini “interests of justice” – considered constitutionality of guidelines. Said
they afford the judiciary guidance when it is necessary. A welcome exercise of
legislative power. (a) to (e) is a checklist of the main criteria.
The legislature did not interfere with judicial discretion, but did prescribe in what
instances you may allow and not allow bail (suitable to dictate some guidance when
granting a bail application)
FACTORS:
- S60(4)(a)-(e) read with S60(5) (don’t need to remember sections just know they are
individual sections)
- S 60(4) provides that the refusal to grant bail and the detention of the accused in
custody shall be in the interests of justice where one or more of the following
grounds are established:
S60(4)(a) and S60(5): propensity to commit crime again
- Does the accused have the tendency to commit crime again, may endanger a certain
person or group or commit a schedule 1 offence
- Strong consideration when person has threatened people and has a history of
committing crime
, - Bail = highly individualized (weighing up several considerations)
S60(4)(b) and S60(6): likelihood of the accused attempting to evade trial if released
- Will the accused actually come back and stand trial + will the accused commit
crime/be a danger if released?
- Strength of the state’s case, evidence available to the state
- Mobility of the accused (passports, ties to foreign countries, business overseas) =
might be easier for them to flee
S 60(4)(c) & 60(7): influence/intimidate witnesses; conceal/destroy evidence
- Accused may intimidate or influence witnesses, conceal or destroy evidence
- Is accused aware of identity of witnesses and the statements they might have made
(not a strong factor if you don’t know who the state witnesses are)
- Must be a real risk not just possibility
S60(4)(d) and S60(8)
- Undermine or jeopardies proper functioning of criminal justice system
S60(4)(e) and S60(8A)
- Disturb public order or undermine the public peace and security
- How public will react to your release
- S v Miselo = public shock due to the release
- Undermines faith in the criminal justice system
- Court here also said usually courts would only look at if someone would attend trial
and if they would intimidate witnesses
- Now = more complex, also look at public’s reactions
S60(9)
- Interest of justice and personal freedom, possible prejudice to accused
- Any possible prejudice they may face if not released
- Here we look at factors in favour of accused (very remorseful, ties to the community)
- State can’t really use this factor in their favour
S v Branco
- On appeal said can’t merely look at this factor
- Should consider conditions they may oppose on the accused
- Just because foreign national doesn’t mean they should be denied bail
Amount of bail:
- Guideline is to set it at amount that can be paid AND will make it more advantageous
for accused to stand trial
- Must be careful investigation into means and resources of the accused (especially if
no legal representation) - determines their ability to pay
- Individualization important: can fix a high bail amount if person is clearly wealthy
S v Mbolombo
- court considered the amount of bail, set at 50k, accused was accused of stealing 50k
, - If he came up with the money it would amount to a tacit admission of guilt
- Bail court is not substantive criminal hearing
- Take into account that this might be a possibility
- Not determining factor
- Look at previous cases
Court could request to see bank statements
Must actually be possible for you to pay bail
If charge a high amount for a poor person = amounts to refusal of bail
Bail conditions: discretionary v essential
Discretionary special conditions: court may subject accused to conditions which the
court believes are in the interest of justice – (not police bail)
- Examples: handing in passport, not leaving area of court’s jurisdiction
Essential conditions = show up for trial state and remain in attendance for the
duration of the trial
S v Branco
- Foreign national
- Was refusal of bail fair in this instance
- Would be improper for court to not consider imposing further conditions
- Court imposed further conditions on appeal (must go to police station 3x a day and
hand in passport)
S v Packham ZAWCHC - NB
- Accused of murdering wife
- Imposed various bail conditions
- Did not adhere to conditions
- Got 50k then increased to 75k and violated conditions again
- Bail went back to depositor not forfeited
- Remain in house and only allowed to go out once a week for 3 hours to shop
Immoral? Psychologically damaging? Court must have thought he was such a flight
risk that this extreme was necessary
- Hand in all electronic to legal reps
- Neighbors told police that he had been out and about
- Also contacted state witnesses
- Telkom land line= contacted people he was prohibited from contacting
- If did not answer he had to leave a voice mail
- Decided he would remain in custody until conclusion of trial cause he violated
conditions despite bail being increased and conditions imposed
Certain conditions court cannot impose ultra vires
- Prohibited from contacting wife
- prohibit you from marrying state witness
Bail and legal ethics
- Prosecutor not allowed to give bail for their client = conflict of interest or unethical
(not illegal though)
Prognostic exercise where we consider rights of accused vs interests of
community to have possible offender locked up during trial
Can still remain silent but may be to your detriment because you need to
convince why you should be released
Forms of bail
1) Police bail
- Limited application and usually not for serious offences
- S 59(1)(a) CPA
- May be granted by police official of a certain rank
- May consult with lawyer but unlikely cause they just want to get out quickly
- Not possible for serious common law offences (treason, murder, rape, arson,
kidnapping, theft, fraud, sedition, and assault) S59
Limitations:
- Can only take place before an accused’s first appearance in a lower court (limitation
to ensure courts remain in direct and exclusive control over release on bail once the
case is on the roll).
- Payment of cash is a condition (only cash payments can be received in payment of
police bail) = unique and a limitation
- No other discretionary conditions can be added (such as may not leave house or
correspond with certain people etc… only with other forms of bail)
- Court (if prosecutor applies) can amend the conditions – the police cannot - but
unlikely
2) Prosecutorial bail
- S 59A(3)(b) CPA
- Director of public prosecutions or a prosecutor authorized may authorize the release
of an accused on bail
- Person who is in custody shall be released from custody:
a. upon payment of the sum of money determined for their bail at the place of
detention (can also guarantee to pay. more liberal, not necessarily cash)
b. Subject to the imposition of reasonable discretionary conditions (e.g. leave
house, see people, leave country)
- Condition that is always there = appear before court on certain date
- Prosecutorial bail only lasts until first appearance in court
c. Payment of a sum of money (or the furnishing of such guarantee) AND the
imposition of reasonable conditions
, 3) FOCUS: Bail application in court
- S 60 - First appearance after arrest
- Entitled to be released on bail at any stage prior to conviction, unless court finds it in
interests of justice not to release
- Appeal by accused to HC against a lower court’s decision concerning bail: if accused
is aggrieved that they were denied bail or by the imposition of a certain bail
condition, they may appeal to the HC which has jurisdiction
- May be that you were denied bail at some stage, and you are kept in custody until
conclusion of trial = you can apply for bail at any time again
- If denied in lower court appeal in higher court
- DPP can also appeal bail outcome to HC against decision of a lower court to release
an accused on bail or against the imposition of a condition of bail
- DPP can appeal to SCA against the decision of a superior court to release the accused
on bail
If you appeal you stay where you are whether that’s inside or outside
Bail and jurisdiction of courts:
POV 1: No inherent jurisdiction of courts to grant bail: only statutory function.
POV 2: S v Thornhill “inherent jurisdiction of HC” when statutory provisions do not
authorize the course of release on bail
Appeal power stops with SCA (no court has common law or statutory power to
appeal after the SCA has denied you bail (both POV kind of agree here)
Factors relating to bail application
Risks: freedom and interests of administration of justice cannot be prejudiced by
granting/ refusing bail (S v Thornhill, S v Branco)
NB S60(4) (a)-(e) evaluated in conjunction with guidelines listed in S60(5)-(9)
S v Dlamini “interests of justice” – considered constitutionality of guidelines. Said
they afford the judiciary guidance when it is necessary. A welcome exercise of
legislative power. (a) to (e) is a checklist of the main criteria.
The legislature did not interfere with judicial discretion, but did prescribe in what
instances you may allow and not allow bail (suitable to dictate some guidance when
granting a bail application)
FACTORS:
- S60(4)(a)-(e) read with S60(5) (don’t need to remember sections just know they are
individual sections)
- S 60(4) provides that the refusal to grant bail and the detention of the accused in
custody shall be in the interests of justice where one or more of the following
grounds are established:
S60(4)(a) and S60(5): propensity to commit crime again
- Does the accused have the tendency to commit crime again, may endanger a certain
person or group or commit a schedule 1 offence
- Strong consideration when person has threatened people and has a history of
committing crime
, - Bail = highly individualized (weighing up several considerations)
S60(4)(b) and S60(6): likelihood of the accused attempting to evade trial if released
- Will the accused actually come back and stand trial + will the accused commit
crime/be a danger if released?
- Strength of the state’s case, evidence available to the state
- Mobility of the accused (passports, ties to foreign countries, business overseas) =
might be easier for them to flee
S 60(4)(c) & 60(7): influence/intimidate witnesses; conceal/destroy evidence
- Accused may intimidate or influence witnesses, conceal or destroy evidence
- Is accused aware of identity of witnesses and the statements they might have made
(not a strong factor if you don’t know who the state witnesses are)
- Must be a real risk not just possibility
S60(4)(d) and S60(8)
- Undermine or jeopardies proper functioning of criminal justice system
S60(4)(e) and S60(8A)
- Disturb public order or undermine the public peace and security
- How public will react to your release
- S v Miselo = public shock due to the release
- Undermines faith in the criminal justice system
- Court here also said usually courts would only look at if someone would attend trial
and if they would intimidate witnesses
- Now = more complex, also look at public’s reactions
S60(9)
- Interest of justice and personal freedom, possible prejudice to accused
- Any possible prejudice they may face if not released
- Here we look at factors in favour of accused (very remorseful, ties to the community)
- State can’t really use this factor in their favour
S v Branco
- On appeal said can’t merely look at this factor
- Should consider conditions they may oppose on the accused
- Just because foreign national doesn’t mean they should be denied bail
Amount of bail:
- Guideline is to set it at amount that can be paid AND will make it more advantageous
for accused to stand trial
- Must be careful investigation into means and resources of the accused (especially if
no legal representation) - determines their ability to pay
- Individualization important: can fix a high bail amount if person is clearly wealthy
S v Mbolombo
- court considered the amount of bail, set at 50k, accused was accused of stealing 50k
, - If he came up with the money it would amount to a tacit admission of guilt
- Bail court is not substantive criminal hearing
- Take into account that this might be a possibility
- Not determining factor
- Look at previous cases
Court could request to see bank statements
Must actually be possible for you to pay bail
If charge a high amount for a poor person = amounts to refusal of bail
Bail conditions: discretionary v essential
Discretionary special conditions: court may subject accused to conditions which the
court believes are in the interest of justice – (not police bail)
- Examples: handing in passport, not leaving area of court’s jurisdiction
Essential conditions = show up for trial state and remain in attendance for the
duration of the trial
S v Branco
- Foreign national
- Was refusal of bail fair in this instance
- Would be improper for court to not consider imposing further conditions
- Court imposed further conditions on appeal (must go to police station 3x a day and
hand in passport)
S v Packham ZAWCHC - NB
- Accused of murdering wife
- Imposed various bail conditions
- Did not adhere to conditions
- Got 50k then increased to 75k and violated conditions again
- Bail went back to depositor not forfeited
- Remain in house and only allowed to go out once a week for 3 hours to shop
Immoral? Psychologically damaging? Court must have thought he was such a flight
risk that this extreme was necessary
- Hand in all electronic to legal reps
- Neighbors told police that he had been out and about
- Also contacted state witnesses
- Telkom land line= contacted people he was prohibited from contacting
- If did not answer he had to leave a voice mail
- Decided he would remain in custody until conclusion of trial cause he violated
conditions despite bail being increased and conditions imposed
Certain conditions court cannot impose ultra vires
- Prohibited from contacting wife
- prohibit you from marrying state witness
Bail and legal ethics
- Prosecutor not allowed to give bail for their client = conflict of interest or unethical
(not illegal though)
