Most people never even contemplate the possibility of being arrested. But the sad reality is that, it may just happen when you least expect it. Should the question be raised about what you will do first when arrested, you might come up with a quick answer – phone an attorney of course! This may actually be easier said than done, especially if you get arrested late at night or over a weekend. How will you then be able to get legal assistance to apply for bail?
We have streamlined our client service in respect of bail applications and offer a dedicated 24hr call line that you can use when you find yourself in this unfortunate situation. This means that, once you’ve been arrested, you will always have access to a dedicated professional who will come to your aid at any time of the day or night.
Bail applications made simple
When you have been arrested for having committed a crime or for being suspected of committing a crime, the first to remember is to not resist arrest or to attempt to flee as this will only worsen your case later on.
After arrest the law requires that you be brought to the police station as soon as possible and thereafter to be detained for no longer than 48hours before being brought before a court for your first appearance. Unfortunately the 48hour period does not run over weekends. This means that if you get arrested on a Wednesday afternoon at 17h00, although 48 hours will expire on the Friday afternoon at the same time, it may happen that you only appear in court on the Monday morning as the courts are not in session over the weekends.
This does not mean that you have to stay behind bars until brought to court for first appearance. Both the Criminal Procedure Act 51 of 1957 (CPA) and the Constitution protects your right to liberty and the right not to be deprived of your freedom without just cause. Furthermore, in terms of the Constitution, you are presumed innocent until proven guilty (s 35(3) h). This means that you have the right to be released on bail pending the finalisation of your case if the interests of justice permit your release.
In practice, there are three different forms of bail, depending on the type of offence that a person has been arrested for.
The first type is the so called “Police Bail” provided for in section 59(1)(a) of the CPA, which enables an arrested person to apply for bail at the police station before the expiration of 48 hours and before first appearance in court. Police Bail is granted by any police official of the rank inspector and above and is for minor offences such as theft under R2500, common assault or possession of dagga less than 115 grams. However, Police Bail does not apply to serious offences like those found in part 2 & 3 of Schedule 2 to the CPA. The offences in part 2 & 3 of Schedule 2 include:
- Rape or Compelled rape;
- Sexual offences involving a child or a mental person, ect.
The second type of bail that can be applied for before the arrested person has to make his/her first appearance in court is so called “Prosecutor Bail” in terms of section 59A of the CPA.
This form of bail can be also applied for while the arrested person is at the police station but to a Prosecutor who has been authorised by the Director of Public Prosecutions (DPP) to grant bail for more serious offences. Prosecutor bail is mainly for offences listed in schedule 7 (e.g. public violence, culpable homicide, arson, bestiality or robbery where amount involved does not exceed R20 000).
However, when a person is charged with more serious offences like those found in schedule 5 & 6, then in terms of s 50(6) (b) & (c) after hours bail cannot be applied for, and bail for this schedules will only be decided upon when the arrested person makes his/her first appearance in court.
Bail applications in court
The third form of bail that can be applied for, is bail at the first court appearance in terms of s 60 of the CPA.
According to this section an arrested person can apply for bail upon his first appearance or at any time before the accused is convicted, if the interests of justice permit. The court can also on its own accord, if the issue of bail is not raised, enquire from the accused if he wishes the issue to be considered.
The interests of justice will favour your release on bail if the circumstances listed in section 60(4) do not exist. These are:
- There is likelihood that you, if released, will endanger the safety of the public or any particular person or commit a schedule 1 offence;
- That, if released on bail, you will attempt to evade your trial;
- That you will attempt to influence or intimidate witnesses or to conceal or destroy evidence;
- That you, if released, will undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system; or
- That your release will disturb public order or undermine public peace or security.
It is important to emphasise that, when you or a family member of friend is arrested, you remain calm and respectful to the arresting officer and all officials of the SAPS or Metro Police you come in contact with. To be disrespectful to these officials may only be detrimental to your bail application and is uncalled for.
Should you require any assistance with a bail application, feel free to contact our offices during office hours at 0861 088 088 or after hours at 072 727 2231.
By Sizwe Gumede
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.