, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
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.
(a) Critically discuss whether prosecutorial bail may be applied for the release of the accused,
Allan Fuse in this instance.
Yes, prosecutorial bail may be applied for the release of Allan Fuse in this instance.
Section 59A(1) of the Criminal Procedure Act 51 of 1977 provides that a prosecutor authorised
thereto in writing by the Director of Public Prosecutions may authorise the release of an accused on
bail in respect of offences listed in Schedule 7 of the Act. Arson is specifically listed as one of the
offences for which prosecutorial bail may be granted.[¹]
However, there is an important qualification: prosecutorial bail is not granted in respect of
infrastructure-related offences.[²] While arson is generally listed in Schedule 7, the building in
question is an office building in the Durban CBD. If the building is considered "infrastructure" or the
arson is regarded as an infrastructure-related offence, this may affect the availability of prosecutorial
bail.[³] The facts do not provide sufficient detail to determine whether the office building falls within
the definition of "infrastructure" for this purpose. Mr. Brut Hum would need to establish that the
offence does not fall within the infrastructure-related exception before pursuing prosecutorial bail.
Therefore, while the charge of arson falls under Schedule 7 and is prima facie eligible for
prosecutorial bail, the attorney must satisfy himself that the offence does not fall within the
infrastructure-related exception before arranging with the prosecutor to have the accused brought to
court where bail terms can be set.
¹ Marnewick, C. 2019. Litigation Skills for South African Lawyers. 4th ed. LexisNexis. p. 87. See also Maharaj, A. 2010. Confident Criminal
Litigation. LexisNexis. p. 15.
² Maharaj (2010:15).
³ Maharaj (2010:15).
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.
(a) Critically discuss whether prosecutorial bail may be applied for the release of the accused,
Allan Fuse in this instance.
Yes, prosecutorial bail may be applied for the release of Allan Fuse in this instance.
Section 59A(1) of the Criminal Procedure Act 51 of 1977 provides that a prosecutor authorised
thereto in writing by the Director of Public Prosecutions may authorise the release of an accused on
bail in respect of offences listed in Schedule 7 of the Act. Arson is specifically listed as one of the
offences for which prosecutorial bail may be granted.[¹]
However, there is an important qualification: prosecutorial bail is not granted in respect of
infrastructure-related offences.[²] While arson is generally listed in Schedule 7, the building in
question is an office building in the Durban CBD. If the building is considered "infrastructure" or the
arson is regarded as an infrastructure-related offence, this may affect the availability of prosecutorial
bail.[³] The facts do not provide sufficient detail to determine whether the office building falls within
the definition of "infrastructure" for this purpose. Mr. Brut Hum would need to establish that the
offence does not fall within the infrastructure-related exception before pursuing prosecutorial bail.
Therefore, while the charge of arson falls under Schedule 7 and is prima facie eligible for
prosecutorial bail, the attorney must satisfy himself that the offence does not fall within the
infrastructure-related exception before arranging with the prosecutor to have the accused brought to
court where bail terms can be set.
¹ Marnewick, C. 2019. Litigation Skills for South African Lawyers. 4th ed. LexisNexis. p. 87. See also Maharaj, A. 2010. Confident Criminal
Litigation. LexisNexis. p. 15.
² Maharaj (2010:15).
³ Maharaj (2010:15).
