Bail Flashcards
(119 cards)
1
Q
What is the legal definition of bail?
A
- A contract where a person in custody
- Is released after paying or promising to pay
- A fixed sum of money
- As well as after explicitly or tacitly promising to carry out the conditions of the release
2
Q
Constitional right to bail must be understood iro the following
A
- s35(1)(f) of constitution
- s35(3)(h) of the Constitution
- Bail can be refused if it is in the interests of justice, based on specific grounds in Section 60(4)(a)-(d).
- Bail should not be granted if the accused is likely to:
- Avoid trial or abuse their freedom (e.g., intimidate witnesses).
- Interfere with the administration of justice (AOJ).
- However, courts must weigh the interests carefully—it is often better to grant bail to avoid unnecessary harm to the accused if detention is not justified.
3
Q
What legislation touches on the conditions under which a suspect or accused can be released and what are these conditions
A
s35(1)(f) states that an accused or suspect may only be rrelased if its in the interest of justice to do so as long as they folllow reasonable conditions
4
Q
Dlala case
A
The basic traditional objective of bail is to maximize
personal liberty
5
Q
what legislation elaborates on the presumption of innocence. State the specific words
A
s35(3)(h) of the Constitution states that every person is presumed innocent in the absence of conviction by the law
6
Q
Acheson
A
The accused cannot be kept in detention pending his trial
as a form of anticipatory punishment. He has right to be
presumed innocent and court will usually grant bail unless
this will prejudice the interest of justice.
7
Q
Maryland case
A
The accused that is presumed to be innocent, is
subject to the punitive aspect of detention. The effect
of remaining incarcerated is that he will lose his job as
a result he cannot pay his bail, will not be free to locate
important witnesses. Doesn’t have the opportunity to
frequently contact his attorney
8
Q
Dlamini case on purpose bail serves
A
Bail serves not only the liberty interests of the
accused, but also the public interests (the state), to
reduce high number of trial-awaiting prisoners, and
reduce the number of families deprived of a
breadwinner
9
Q
What compromise results from bail?
A
its seen as a compromise between pre-trial detention and presumtion of innocence
10
Q
Main purpose of bail
A
To strike a balance between the protection of the interests of society as well as the freedom and liberty of the accused
11
Q
How does bail allow an accused to participate in theor defence?
A
It allows the accused to actively plan his defence
12
Q
What does s58 say about bail and conditions of release?
A
Bail is stated as an agreement where the accused is released from detention after paying or guaranteeing a payment of a set amount and must agree to appear in court on a set date
Section 58 of the CPA further states that when charged with schedule 5 and 6 offences, the court will use section 60(11)(a) and 60(11)(b) to decide whether to grant or extend the bail
In doing this the court considers 2 things:
The fact that the accused has been convicted of an offence and the likely sentence that the court might want to impose
13
Q
How does Section 58 define bail in the Criminal Procedure Act?
A
It defines bail as an agreement where an accused is detained after paying or guaranteeing to pay a prescribed amount while also guaranteeing to be present at the set trial date
14
Q
What must the court consider when deciding bail for a Schedule 5 or 6 offence under Section 60(11)(a) and (b)?
A
Whether the court will grant or extend bail
15
Q
What two factors must the court take into account when determining bail for someone already convicted of an offence?
A
- The fact that the accused is committed of an offence
- The likely sentence that the court will impose
16
Q
List a few of the general principles of bail?
A
❖ Not a substitute for trial.
❖ Urgency principle.
❖ No imprisonment = No bail is undesirable.
❖ Always grant bail when possible.
❖ Non-penal.
❖ Not to obtain statement from accused.
❖ Undefended = Court explains + Prosecutor initiates.
❖ Personal Interests of accused vs Interests of justice (even
unopposed).
❖ Indemnity is of no influence.
17
Q
Acheson on general principle
A
Bail is non-penal in nature
18
Q
What must a court do when an accused is undefended in a bail hearing?
A
The court must inform them of their right of bail as well as the procedure
19
Q
The role of the prosecutor when the accused is undefended?
A
The prosecutor will initiate the proceedings
20
Q
What happens when neither party raises the issue of bail?
A
The presiding officer must inverstigate this issue
21
Q
Ramgobin case on question of refusal or granting of bail
A
The question whether bail should be refused or granted is essentially a judicial one, and should in principle be determined by a court of law
22
Q
what legislation regulates police bail?
A
s59 of CPA
23
Q
When may s59 of the CPA be granted?
A
▪ It may be granted for all offences except those listed in
Part 2 and Part 3 of Schedule 2.
24
Q
Who is authorized to grant police bail under Section 59?
A
▪ It can be granted by any police official or
* a police official who is above the rank of non-commission officer.
25
What documentation must be provided to the accused after police bail is granted?
* Receipt of the payment of the sum required
* Including the date, time and place where the accused must show up for the proceeding
26
What legal action can be taken if police bail is refused on malicious grounds?
Claim for damages
27
What are the key limitations of police bail under Section 59?
It is only restricted to trivial offences
It can only be invoked before the accused’s first court appearance
The officer cannot decide on the special conditions related to the accused’ release on bail
28
what legislative provision regulates prosecutoral bail?
s59A of the CPA
29
Wha are the restrictions of s59A?
▪ May only be applied prior to the first appearance and
does not permit release on warning.
▪ It applies only to schedule 7 offences.
30
What is the implication of prosecutoral bail?
▪ Prosecutorial bail implies that the proceedings remain the subject of judicial control.
31
What conditions must be met for an accused person to be released on prosecutorial bail?
Must make payment of the sum of money prescribed for the release at the place of detention, upon meeting the reasonable conditions places by the DPP or prosecutor
Or after furnishing the guarantee of payment of the some of money and the imposition of the conditions
32
Requirements for prosecutoral bail
Bail can be granted by the DPP or a prosecutor authorized in writing.
The investigating officer must be consulted beforehand.
The decision, including conditions, must be fully recorded.
The accused will be released after paying the set bail amount or providing a guarantee, under reasonable conditions set by the DPP or prosecutor.
33
Effect of prosecutoral bail
The accused must appear in court on the first court day after being released, at the time set by the prosecutor.
Bail remains valid until this first court appearance.
At that hearing, the court may:
* Extend bail under the same conditions.
* Add new bail conditions.
* Reconsider the bail application
34
Section of the CPA that apply for bail applications of an accused in court
Section 60 of CPA
35
Section of the Constitution that applies to Bail Applications of
an Accused in Court
Section 12(1) of the Constitution also provides for the right
to freedom, including the right not the be detained without
trial, subject to permitted limitations in terms of section 36.
36
Sections which section 60 of the CPA must be read with
s50(1)
s50(6)(a)
s50(6)(b)
s50(6)(c)
s50(6)(d)
37
Conditions of s50(6)
1st time in court
entitled to apply for bail
There are circumstances where the application can be delayed for 7 days
section sets out circumstances where bail doesn’t have to be done immediately
38
Section 60(1)(a) relation to s50(6)
S60(1)(a)
o Accused who = in custody iro offence SHALL SUBJECT to provisions of s50(6)
BE ENTITLED to RELEASE on bail **at any stage preceding his conviction**
unless court finds it be in **interest of justice that he be detained in custody**
39
Connection of s60(1)(b) to s50(6)
o IF accused referred to another court for trial or sentencing: THEN court referring
accused retains jurisdiction relating to the powers, functions and duties iro bail
UNTIL the accused appears in such other court for the FIRST TIME
40
What to note about the new s60 and old s 60
o The s60 as discussed in the textbook is the OLD s60
In the new s60 the applicant has to convince the court as to why he
should be released → HOWEVER in practice the old s60 is basically
applied because the state still proves BRD why the accused should NOT
be released.
41
Conditions in s50(1)
An accused who is in detention afetr an arrest muts as soon as reasonable possible be informed of his/her righst to institute bail proceedings
The accused must be brought before a **lower court** as soon as reasonably possible but **not later than 48 hours after the arrest**
42
Section 50(6)(a)
An accused is at first appearnace in court entitled to apply for bail
43
s50(6)(b)
An accused is NOT entitled to bring a bail application outside ordinary court
hours
Only section 59 and s59A bail may be granted **after hours**
44
Section 50(6)(c)
If an accused is charged with a **Schedule 6** offence (which includes serious crimes like murder or rape), the case must first go to a District Magistrate’s Court. However, if the Director of Public Prosecutions (DPP) or an authorized prosecutor believes it is necessary for justice, they can direct in writing that the case be heard in a Regional Magistrate’s Court instead. This ensures that complex or serious cases are handled at the appropriate level.
45
S50(6)(d) on the conditions of postpinment of bail applications
Bail applications can be postponed for up to 7 days at a time if:
* The court lacks enough information or evidence to decide.
* The prosecutor states the case has been or will be referred to the DPP with written confirmation.
46
s50(6)(d) on what is neccessary
The court finds it necessary to allow the state time to:
* Gather crucial evidence that may be lost if bail is granted.
* Carry out specific legal procedures (as outlined in section 37).
* Act in the interests of justice.
47
other general matters pertaining to bail
The accused has the right to apply for bail at any stage before conviction.
Bail must be granted if it serves the interests of justice.
If bail is granted, an inquiry must determine whether the accused can afford it.
If the accused is sent to another court for trial, the original court keeps bail-related authority until the first appearance in the new court.
The court must actively address bail, even if the accused or prosecution does not bring it up.
48
Legislative provision for release of a child on bail
section 25 of CJA
49
Elaborate on section 25 of CJA
An application for a child's bail goes through three steps:
* Interests of Justice: The court decides if releasing the child on bail is fair and justified.
* Financial Inquiry: An assessment is made to check if the child and their parent/guardian can afford bail.
* Payment & Conditions:
* If they cannot pay, bail conditions will be set without requiring money.
* If they can pay, the court sets appropriate conditions and a bail amount.
50
Genrral question to consider in determining bail applications
➢ Will the interest of justice be prejudiced if the accused is
granted bail?
51
4 subsidiary questions when determining bail applications
➢ Will the accused stand his trial if released on bail?
➢ Will he interfere with state witnesses or police
investigation?
➢ Will he commit further crimes?
➢ Will his release be prejudicial to law and order and safety
and security of the state?
52
How does the court handle evidence during bail proceedings?
The strict rules of evidence are relaxed, and the court is not bound by standard evidentiary rules.
53
What powers does the court have under Section 60(2) during a bail application?
The court can:
**Postpone** proceedings under Section 50(6).
**Informally gather information** for **matters not in dispute** between the accused and prosecutor.
**Require evidence** for disputed matters.
Ask the prosecutor to **record reasons** for not opposing bail in Schedule 6 and Schedule 5 cases.
54
What factors must the court consider when determining if granting bail is in the interests of justice?
Subsections 60(4) – (9) of the CPA provide guidelines, but they are not exhaustive. The court may also consider external and unrelated factors.
55
Under Section **60(4)**, when might the court decide **not to release the accused?**
If the accused:
* Might commit a Schedule 1 offence.
* May attempt to evade trial.
* Could intimidate witnesses or destroy evidence.
* Might undermine the justice system, including the bail process.
* Would disturb public order or security.
56
What does Section 60(5) consider when assessing the risk of reoffending?
The court examines:
* If the accused is a **personal** or **general** threat.
* Any **history** of violence or past offenses.
* How **common** the accused’s type of offense is.
* Other relevant factors.
57
How does **Section 60(6)** assess the accused’s **flight risk**?
The court considers:
1. Whether the accused has strong ties to a place (e.g., family).
2. The seriousness of the charges.
3. The strength of the case against the accused.
4. The likelihood of successful evasion.
5. Whether extradition is possible if the accused flees.
6. Whether bail conditions could prevent escape.
58
What does **Section 60(7)** examine regarding **witness intimidation**?
A: The court reviews:
* The **accused’s familiarity** with witnesses.
* The **risk of intimidation or influence** over them.
* Whether **bail conditions can prevent interference**.
* Whether bail could i**mpact police investigations.**
59
What does **Section 60(8)** evaluate when assessing **interference with justice?**
A: The court looks at:
* If the accused has knowingly provided false information.
* Whether they are already in custody or on parole.
* Past failures to comply with bail conditions.
* Any other relevant factor.
60
Under **Section 60(8A)**, how does the court assess **public peace and security**?
The court considers:
* Whether releasing the accused **poses a danger to them**.
* Whether the crime has caused **public outrage**.
* If releasing the accused could **trigger disorder**.
* Other relevant factors.
61
What does Section 60(9) say about prolonged detention?
The court must **weigh the harm** to the accused and community, considering:
* How long the accused has been in custody.
* Expected detention period before trial.
* Any delays in trial proceedings.
* Financial loss to the accused.
* Other relevant factors.
62
What irrelevant factors must the court ignore? and what case law stiplutes this?
Under the **Veenendal ruling**, the court must ignore threats such as the accused **refusing to eat in protest of bail denial.**
63
What is the court’s duty in bail decisions?
The court must **ensure sufficient information is available** and **weigh the accused’s personal interests against justice**, even if the State does not oppose bail.
64
Describe s60 steps on who carries onus
1. Look at offence, is it a Sch6 offence?
yes: S60(11)(a) applies
no: Then look at whether it’s a Sch5 offence?
yes: S60(11)(b) applies
no: then not a Sch5/6 offence, then s60(1)(a) applies
65
Steps to be followed when applying s60(11)(a)
IS a **Sch6** offence
**Accused** has the onus to convince the court that you’re entitled to bail
Must show there are **extraordinary circumstances** which will be in the **interest
of justice** for accused to go on bail.
66
Steps when applying s60(11)(b)
IS a **Sch5 offence**
**Applicant** carries onus of proof but **doesn’t have to prove extraordinary
circumstances**
67
Steps in applying s60(1)(a)
Applies to **rest of all offences**
**New** s60(1)(a):
o right to bail in new section is a **weaker right**
o** Applicant** carries onus of proof
Applicant must convince court
o **IN PRACTICE** however: the state still applies the old principle that the **state
must prove that its in the interest of justice for you to stay in jail**
68
Who carries the burden of proof in a Schedule 6 bail application?
The accused must prove their case on a balance of probabilities.
69
What is the procedure for a Schedule 6 bail application?
It is handled by the **District Magistrates’ Court** unless the DPP or a duly authorized **prosecutor directs it to the Regional Magistrates’ Court.**
The accused can **submit evidence via affidavit or oral testimony.**
The court considers all **relevant factors from subsections (4) – (9).**
70
What qualifies as “exceptional circumstances” under Section 60(11)(a)?
Dlamini CC: Emotional conditions can count.
Jonas: Terminal illness, urgent surgery, or a cast-iron alibi qualify.
Botha: Strong evidence of probable acquittal qualifies.
Mauk: Proof must meet a balance of probabilities.
Mokgoje: Business hardship, delays, or prior co-accused bail do not qualify.
71
THE PRO-ACTIVE (INQUISITORIAL) ROLE OF THE COURT
**Section 60(1)(c)**: If the prosecutor doesn’t raise bail, the court must ask the accused if they want bail considered.
**Section 60(2)(a)**: The court may gather undisputed information informally to make a bail decision.
72
Wha happens where the prosecutor does not oppose bail iro S60(11)(a) and s60(11)(b) matters
THEN S60(2)(d) applies:
o The court must require the prosecutor to place on record the reason for NOT
opposing the bail application (regarded as an inquisitorial feature of bail)
73
Prohobition of the court from playing a passive role in the proceedings
→ S60(3) applies in this
regard:
o IF the court is of the opinion that it does not have reliable OR sufficient info OR
evidence at its disposal OR that it lacks certain NB info THEN the presiding
officer shall order that such info or evidence be placed before the court
74
What is the procedure for bail under Section 60(11)(b) (Schedule 5 offences)?
The accused must prove that releasing them serves the interests of justice.
The same rules apply as in Section 60(11)(a).
75
What written confirmation is required from the DPP?
For Schedule 5 or 6 offences, the prosecutor must provide written confirmation under Section 60(11A) or an affidavit from the investigating officer.
This ensures objective jurisdictional facts exist before Section 60(11) applies.
76
PROOF OF PREVIOUS CONVICTIONS
Previous convictions may be proved by the state in course of a bail application (Patel)
Info has to be provided to the court wrt bail applications:
o Either given by the accused himself
o S60(11B)(a): legal advisor is compelled to inform the court whether the
accused has previously been convicted of an offence
o Any charges pending against the accused must be disclosed
o S60(11B)(b): the accused must confirm the required info
o S60(11B)(d): an accused who willfully refuses to give info iro the above,
commits an offence >>> liable for a fine/imprisonment for period not exceeding
2 years (same applies ito false info)
77
What must an accused disclose under Section 61(11B)(a)?
The accused, or their legal representative, must inform the court about:
* Any prior convictions.
* Any pending charges.
* Whether they have been released on bail for those charges.
78
Does the accused’s prior conviction become part of the record?
No, prior convictions do not form part of the court record.
79
What happens if the accused refuses to provide this information under Section 61(11B)(d)?
They commit an offence and may face a fine or imprisonment for up to 2 years.
80
Do bail records become part of the trial record?
Yes, bail records form part of the trial record.
81
What did the Dlamini (CC) case rule about evidence in bail applications?
* The accused must be warned before providing evidence during bail.
* If they voluntarily provide information, they cannot exclude it from the trial record.
* The right to silence is limited.
* The evidence can be used in cross-examination but does not automatically become part of the prosecution’s case.
82
Is the accused entitled to the police docket for their bail application (Section 60(14))?
No, the accused cannot access the docket for bail purposes.
83
What are the concerns about this restriction?
The accused has the right to a fair bail hearing.
The State could suppress evidence that may favor the accused.
Helpful information outside the docket must be provided to the defense.
84
What was the Dlamini ruling on withholding docket contents?
The court held that withholding docket information could be constitutionally acceptable in some cases.
85
Can bail conditions be changed after bail is granted?
Yes, any court handling the case can add further bail conditions at any stage upon the prosecutor’s request.
86
What conditions can be added to bail?
* The accused may need to **report in person** at a specific time/place.
* They may be forbidden from **going to certain locations**.
* **Restrictions on communication** with prosecution witnesses.
* **Specific places** for legal document service.
* **Conditions** to ensure justice is not jeopardized.
* **Supervision** by a probation officer or correctional official.
87
What are the rules for valid bail conditions?
They must:
✅ Not be against **public morals** (contra bonos mores).
✅ Not be **vague or unclear.**
✅ Not exceed legal authority **(ultra vires)**.
✅ Be **practical and enforceable.**
88
How can bail applications be submitted?
Ex Parte Application.
Oral Evidence on Oath.
Affidavit-based applications.
89
What is the purpose of Section 63 of the CPA?
It provides a procedure for amending bail conditions or the amount due to changed circumstances.
90
Can an accused appeal amendments to bail conditions?
Yes, under Section 65(1) of the CPA:
* No leave to appeal is required.
* There are no time limits for appeals.
* The accused must state their grounds for appeal.
* If the magistrate erred, the appeal court will issue the correct order.
91
What does Section 64 of the CPA require regarding bail records?
* Bail proceedings and conditions must be **recorded in full.**
* The record forms part of the main trial and serves as prima facie proof.
92
What does Section 65 cover?
Appeals from lower courts to superior courts.
93
What are the rules for bail appeals?
No leave to appeal is needed, even to the Supreme Court of Appeal (SCA).
A notice of appeal must be filed, outlining specific grounds.
The absence of notice is a procedural defect.
Appeals may be heard by a single judge.
The accused can only appeal the refusal of a renewed bail application based on new facts, if those facts were properly presented.
The court hearing the appeal will not overturn a decision unless it finds an error, in which case it will issue the correct ruling.
94
Can the State appeal bail decisions? Which legislation supports this?
Yes, under Section 65A of the CPA, the State may appeal the release of the accused or certain bail conditions.
95
When is leave to appeal granted to the State?
When the court believes there is a reasonable prospect of success on appeal.
96
Can the SCA dismiss an appeal?
Yes, if there is no practical benefit to the appellant.
97
Who bears the burden of proof when bail conditions are breached?
The State must prove the accused breached conditions due to their own fault.
The accused must prove any facts that justify keeping bail.
98
What happens to bail pending an appeal if the appeal is struck from the roll?
Bail lapses.
99
What does the court consider in determining a bail breach?
* Were bail conditions breached?
* Was the breach due to the accused's fault?
100
What must the court consider separately regarding bail money forfeiture?
The forfeiture of bail money must be handled separately. Failing to do so is an irregularity
101
When can bail be canceled and forfeited to the State?
Only if the accused has paid bail and been released.
102
Can bail decisions be appealed under Section 66?
No, they can only be reviewed, not appealed.
103
What happens if an accused fails to appear in court under Section 67 of the CPA?
The court must:
* Withdraw their bail.
* Provisionally forfeit the bail amount.
* Issue a warrant of arrest.
104
What is the penalty for failing to appear or violating bail conditions under Section 67A?
The accused may be fined or imprisoned for up to one year.
105
What is the procedure when an accused fails to appear? A:
The court issues a warrant of arrest.
The case is postponed for 14 days.
If the accused appears within 14 days and provides a reasonable explanation, the warrant is canceled, and bail is reinstated.
If the accused fails to appear, bail is permanently withdrawn, and they are placed in detention.
106
Who bears the burden of proof for failure to appear?
The accused must prove their absence was not their fault.
107
When can a court cancel bail?
Bail may be canceled if the accused:
Is likely to evade justice.
Has interfered with or threatened witnesses.
Has attempted to defeat the ends of justice.
Poses a threat to public safety.
Has failed to disclose prior convictions.
Provided false information that influenced the bail decision.
If it is in the interests of justice to do so.
108
What happens after grounds for cancellation are met?
The court may issue a warrant of arrest.
A peace officer can apply for an arrest warrant with a written statement under oath.
109
THE BURDEN AND STANDARD OF PROOF OF BAIL APPLICATIONS
standard of proof required from an accused where he bears the burden of proof **ito
S60(11)(a) and s60(11)(b)** is ON A BALANCE OF PROBABILITIES
all matters falling **outside s60(11)(a) and s60(11)(b)**: then burden of proof is on
prosecution
Proof beyond reasonable doubt is not necessary → WHY? – because the guilt or
innocence of the accused is not the issue
110
Who bears the burden of proof for bail cancellation?
The State must prove, on a balance of probabilities, that cancellation is justified.
111
When can the accused request bail cancellation?
In two cases:
* If they are already in custody on another charge
* If they are serving a sentence.
112
How does the accused request bail cancellation?
The accused must submit a formal application.
If undefended, the court may inform them of this option.
113
Which provision regulates release on warnings?
s72 of CPA
114
What does Section 72 of the CPA state about release on warning?
A court can release an accused on warning instead of bail. If they fail to return, an arrest warrant is issued.
115
How are juveniles released?
Instead of bail, they are released into the care of parents/guardians.
The parent is warned about the child’s required court date.
If the child fails to appear, an arrest warrant is issued.
116
What legislation applies to bail amendments based on prison conditions?
Section 63 of the CPA.
Section 49G of the Correctional Services Amendment Act.
117
When can the Head of a Prison request bail amendments?
If overcrowding threatens human dignity, health, or safety, the prison head may apply for bail adjustments.
118
What criteria must an accused meet for the prison head to request bail amendments?
The accused must:
Be charged with a Schedule 7 offence or an offence where police may grant bail under Section 59.
Have been granted bail but cannot afford to pay.
Not be in custody for any other offence.
119
What bail amendments can the prison head request?
* Release on warning instead of bail.
* Changes to bail conditions imposed by the court
