Bail explained

Bail is one of the first things that comes up after an arrest, and it is often misunderstood. Some people think getting bail means the charges are weak. Others think being refused bail means the person is guilty. Neither is true.

This guide explains bail in plain terms. It is useful if you have been arrested, if someone close to you has been arrested, or if you reported a crime and want to know why the accused was released.

What bail is

Bail allows a person who has been arrested and charged to be released from custody while their case continues. In return, they usually pay an amount of money to the court or police and agree to follow certain conditions. If they keep to the conditions and come to court every time they must, the money is usually paid back at the end of the case.

Bail exists because a person is presumed innocent until proven guilty. Section 35 of the Constitution says that an arrested person must be brought before a court as soon as reasonably possible, generally within 48 hours. If that time ends outside court hours, it is the next court day. An arrested person also has the right to be released, with or without bail, if the interests of justice allow it.

Bail does not decide guilt or innocence. It only decides where the accused will wait for the case to be finished.

Who decides on bail

Who can grant bail depends on how serious the charge is.

• For some less serious offences, the police may grant bail at the station before the first court appearance.
• For some offences, a prosecutor can agree to bail before the first court appearance.
• For more serious offences, only a court can decide, usually at a bail hearing.
• For minor offences, a person may sometimes be released on a warning, without paying any money, as long as they promise to come to court.

A bail hearing can be postponed, for example so the police can check information. The accused may stay in custody until it is finished.

How the court decides

The court applies the Criminal Procedure Act 51 of 1977. The main question is whether releasing the accused is in the interests of justice. The court will look at whether there is a real risk that the accused will:

• harm someone, including the complainant or a witness, or commit another serious crime;
• run away and not come back to court;
• try to influence or threaten witnesses, or hide or destroy evidence;
• otherwise undermine the case or the justice system.

The court also looks at the accused's personal circumstances, such as where they live, their work, their family, any previous convictions and how strong the case against them appears. When setting an amount, the court should consider what the accused can afford.

For some very serious charges, the law places a heavier burden on the accused, who must persuade the court that release is justified.

Bail conditions

The court can attach conditions to bail. Common examples include:

• reporting to a police station on set days;
• living at a particular address;
• not contacting the complainant or any witnesses, directly or through someone else;
• staying away from certain places or people;
• handing in a passport, or not leaving a certain area without permission.

Conditions are not optional. If the accused breaks one, bail can be cancelled, the money can be lost, and the accused can be arrested and kept in custody. Failing to come to court is a separate crime.

If you are the accused

Being arrested is frightening, especially if you believe the accusation is false. Read Your rights if you are arrested and If you are falsely accused.

1. Ask for a lawyer. You have the right to legal representation. If you can't afford one, ask for help from Legal Aid South Africa at court.
2. Be careful what you say. What you say at a bail hearing can be used later at your trial. Speak to a lawyer before you give evidence.
3. Gather your documents. Proof of your address, your ID, proof of work or income, and the details of people who can confirm your circumstances can all help.
4. Arrange for someone to help with bail money. Make sure they keep the receipt.
5. Follow every condition exactly. Even if you believe the charge is false, do not contact the complainant or witnesses to sort it out. This can lead to your bail being cancelled.

If bail is refused, you can apply again if there are new facts, or you can appeal. A lawyer can advise you on which step fits your case.

If you reported the crime

It can be upsetting to learn that the person you reported has been released. Bail is not a sign that your report was not believed.

• Tell the investigating officer and the prosecutor before the bail hearing if you are afraid of the accused, and explain why.
• Ask what conditions were set, especially any about contacting you.
• If the accused breaks a condition, for example by contacting or threatening you, report it to the police and the investigating officer straight away.

The Service Charter for Victims of Crime in South Africa gives you the right to receive information about your case and the right to protection. If the accused is a partner or family member, you can also apply for a protection order. Read Applying for a protection order and What happens after you report a crime.

Getting support

Whichever side of a case you are on, the waiting can be hard on you and your family.

• In an emergency: SAPS on 10111, or 112 from a cell phone.
• Legal Aid South Africa Advice Line: 0800 110 110.
• Lifeline South Africa: 0861 322 322, 24 hours a day.
• SADAG Suicide Crisis Helpline: 0800 567 567, 24 hours a day.
• GBV Command Centre: 0800 428 428, for all genders, 24 hours a day.

You can tell us what happened through an anonymous report at /report, or contact our support team at /contact?topic=support. More helplines are listed at /resources.