Bail before one’s first appearance

James Grant

If one is arrested one may be permitted on bail – before one’s first appearance in court. These
instances should be regarded as exceptions to the rule that one may apply for bail at one’s
first appearance. 1

They fall into two categories and are known as either “police bail” or “prosecutor bail”. Both
categories are restricted to relatively minor offences.

Police bail is provided for in section 59 of the Criminal Procedure Act, which provides as
follows:

(1) (a) An accused who is in custody in respect of any offence, other than an offence
referred to in Part II or Part III of Schedule 2 may, before his or her first appearance in a
lower court, be released on bail in respect of such offence by any police official of or above
the rank of non-commissioned officer, in consultation with the police official charged with
the investigation, if the accused deposits at the police station the sum of money determined by
such police official.
It is unfortunate that this section is phrased in the negative and that this is so is not
immediately apparent. The section provides that an officer of the relevant rank (such as a
commissioned officer), 2 in consultation with the investigating officer, may grant bail if the
offence for which one was arrested is not one of the following: 3

• Treason.

• Murder.

• Rape or compelled rape as contemplated in sections 3 and 4

• Any sexual offence against a child or a person who is mentally disabled

1
Section 60(1)(a) of the Criminal Procedure Act 51 of 1977 provides:
An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6),
be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence,
if the court is satisfied that the interests of justice so permit.
2
In Mvu v Minister of Safety and Security & another 2009 (2) SACR 291 (GSJ)
at 300d–e Willis J observed that that a 'commissioned officer' is an officer of or above the rank of inspector,
while a 'noncommissioned officer' is a police officer under the rank of inspector.
3
The list that follows is a collation of the two lists (Part II or Part III of Schedule 2).
 • Trafficking in persons for sexual purposes [by a person contemplated in section 71 (1) or (2)
of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.]

• Robbery.

• Kidnapping.

• Childstealing.

• Arson.

• Breaking or entering any premises, with intent to commit an offence

• Theft, whether under the common law or a statutory provision, receiving stolen property
knowing it to have been stolen, fraud, forgery or uttering a forged document knowing it to
have been forged, in each case if the amount or value involved in the offence exceeds R2 500.

• Offences relating to the coinage.

• Sedition.

• Assault, when a dangerous wound is inflicted.

• Any offence under any law relating to the illicit possession of-

o dagga exceeding 115 grams; or

o any other dependence-producing drugs; or

o conveyance or supply of dependence-producing drugs.

• Any offence under any law relating to the illicit dealing in or possession of precious metals or
precious stones.

• Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of
Persons Act, 2013.

• Contravention of the provisions of section 1 and 1A of the Intimidation Act, 1982 (Act 72 of
1982).

The section requires that the relevant officer exercises a discretion – the word is “may” be
released on bail. However, the discretion is not unfettered and cannot simply be ignored. If
one has been arrested for an offence that triggers the section – an offence not in the list – an
officer of the relevant rank must consider granting bail. 4

Then – once the officer exercises this discretion, she or he must be 'objectively rational and
the same considerations'. 5
It is worth noting – on a practical level – that only cash is accepted for police bail. It is there-
fore wise to arrange for a family member or friend to bring about R1000-2000 (or more if
necessary) to the police station -if you qualify for bail – and in case it is granted.
Prosecutor’s bail is similarly circumscribed – provided for under section 59A(1) of the
Criminal Procedure Act, as follows:

An attorney general, or a prosecutor authorised thereto in writing by the attorney gen-

eral concerned, may, in respect of the offences referred to in Schedule 7 and in con-
sultation with the police official charged with the investigation, authorise the release
of an accused on bail.
Unlike for “police bail”, the list (in schedule 7) is formulated in the positive – if the offence is
in the list, the nominated prosecutor may grant bail. The list is as follows:

• Public violence.

• Culpable homicide.

• Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007.

• Assault, involving the infliction of grievous bodily harm.

• Arson.

4
See Setlhapelo v Minister of Police & another (unreported, GP case no 45031/2012, 20 May 2015) in which
Rossouw AJ said:
'. . . I am of the view that once the jurisdictional facts for the consideration of police bail in terms of s
59(1)(a) of the CPA are present, the police has a constitutional duty to ascertain as soon as reasonably
possible after the arrest whether the arrestee wishes bail to be considered. If the arrestee wishes to ap-
ply for police bail, the senior police official, in consultation with the investigating police official, must
consider bail as a matter of urgency. A failure to inform the arrestee of his constitutional right to apply
for bail or a failure to consider bail or any unreasonable delay in the process could, depending on the
circumstances of the case, render the arrestee's further detention until his first appearance in court un-
lawful.'
[paragraph 38]
See also Shaw v Collins 1883 SC 389 and MacDonald v Kumalo 1927 EDL 293.
5
See Setlhapelo v Minister of Police & another (unreported, GP case no 45031/2012, 20 May 2015) at para 41.
 • Housebreaking, whether under the common law or a statutory provision, with intent to
commit an offence.

• Malicious injury to property.

• Robbery, other than a robbery with aggravating circumstances, if the

• amount involved in the offence does not exceed R20 000,00.

• Theft and any offence referred to in section 264 (1) (a), (b) and (c), if

• the amount involved in the offence does not exceed R20 000,00.

• Any offence in terms of any law relating to the illicit possession of

• dependence-producing drugs.

• Any offence relating to extortion, fraud, forgery or uttering if the amount of value involved in
the offence does not exceed R20 000,00.

• Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

On a practical note – a police station is supposed to keep a roster of the public prosecutors on
duty to consider prosecutor bail. If one qualifies in terms of the offence with which one is
charged, one is entitled to request that the nominated prosecutor is contacted by the relevant
police official. If the police refuse or fail to, you (or your legal representative) may request
the number so as to draw the attention of the nominated prosecutor to your case, that you
qualify for prosecutor bail and desire that she or he consider releasing you on bail.

If you do not qualify for either police or prosecutors bail, you will have to wait until your first
appearance at which time you may apply for bail – under section 60(1)(a) of the Criminal
Procedure Act. 6 Applications for bail before court are concerned with whether it is in the
interests of justice for you to be released. Courts are required to consider the following
criteria – set out in section 60(4) of the Criminal Procedure Act, 7 which are given further

6
See footnote 1.
7
According to section 60(4) of the Criminal Procedure Act:
The interests of justice do not permit the release from detention of an accused where one or more of the
following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the
safety of the public or any particular person or will commit a Schedule 1
offence; or
(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to
evade his or her trial; or
content in section 60 – although this is not relevant here (to bail before one’s first
appearance).

In conclusion then, find out what it is that you are charged with. Determine whether it is an
offence which is not listed in Part II or Part III of Schedule 2 as set out above. If it is not,
then you are entitled to have a commissioned officer consider whether you may be permitted
on bail. If the offence is listed in Part II or Part III of Schedule 2 as set out above, you may
still qualify for prosecutor bail – if the offence is one listed in schedule 7 – set out above.
Both of these forms of bail are means to achieve your release on bail before your first
appearance in Court and should be exercised vigorously by both arrested people and the
police to avoid people arrested for minor offences burdening an already overburdened
criminal justice system.

James Grant

9 January 2018

(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to in-
fluence or intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or
jeopardise the objectives or the proper functioning of the criminal justice
system, including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the release of the accused will dis-
turb the public order or undermine the public peace or security.