The right to bail

What does the Law say with regards to bail?

Section 50(1)(d) of the Constitution provides that a person arrested or detained must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention.

This establishes a general entitlement to bail unless the court finds that it is in the interests of justice that the accused be detained in custody pending trial. The provision of the Criminal Procedure and Evidence Act Section 117 reads as follows:
“Subject to this section and section 32, a person who is in custody in respect of an offence is entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.”

Application for bail
Subject to the proviso to Section 116 of the Criminal Procedure and Evidence Act, an accused person may at any time apply verbally or in writing to the magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate. A written application for bail must be made in such form as may be prescribed in rules of court.

A magistrate may grant bail if the accused is in custody within the magistrate’s area of jurisdiction at any time after he or she has appeared in court on a charge and before sentence is imposed however, the power of magistrates to grant bail or alter bail conditions is severely restricted.

The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—
1. where there is a likelihood that the accused, if he or she were released on bail, will
a) endanger the safety of the public or any particular person or will commit a First Schedule offence; or (murder, rape and robbery.
b) not stand his or her trial or appear to receive sentence; or
c) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
d) undermine or jeopardize the objectives or proper functioning of the criminal justice system, including the bail system;
or
2. where in exceptional circumstances there is the likelihood that the release of accused will disturb the public order or undermine public peace or security.

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