What Is Bail?

Bail can, generally speaking, be described as a contract in terms of which an accused who is being held in custody is set at liberty upon his payment of, or his furnishing of a guarantee to pay, a fixed sum of money and, further, upon his express or implied undertaking to comply with the general conditions (see, for example, s 58) and specific conditions (see, for example, s 62) relating to his release.

The purpose of bail is to strike a balance between the interests of society (the accused should stand his trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of his trial, is presumed to be innocent). In Nagel (ed) Rights of the Accused (1972) 177–8 the following valid remarks are also made (our emphasis): 

’The basic purpose of bail, from society’s point of view, has always been and still is to ensure the accused’s reappearance for trial. In S v Acheson 1991 (2) SA 805 (Nm) Mahomed J remarked as follows (at 822A–B):  ’An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice.’ 

A prosecutor has a duty to place before the court all relevant information which the court needs in the exercise of its discretion with regard to the granting or refusal of bail. It is possible that a prosecutor can be held liable for the consequences of his or her negligent failure to bring critical information to the attention of the court.

Section 59 Bail Before First Appearance Of accused In Lower Court
  • (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. 
    [Para (a) substituted by s 3 of Act 26 of 1987, by s 1 of Act 126 of 1992 and by s 2 of Act 75 of 1995.] 
    (b) The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered. 
    RS 42, 2009 p 9-12A 
    (c) The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court which has jurisdiction. 
    (2) Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first appearance.

Section 59 creates what is sometimes loosely referred to as ‘police bail’, i.e. bail determined by a police official of a certain rank or above and which is determined before the first lower court appearance of the accused.

Section 59 should also be read with s 63A which was inserted in the Act by s 6 of Act 42 of 2001 and which deals with the possible release of an accused on account of prison conditions. See the discussion of s 63A below.

Limited Applicability Of s 59

(a) Bail may not be granted by the police in respect of those offences listed in the specific schedules of the Acts referred to in s 59(1) (a). The result is that s 59 is only applicable to crimes which are, relatively speaking, fairly trivial.

(b) Only cash amounts are receivable in terms of s 59. According to Joubert (ed) Applied Law for Police Officials (2001) 261 cheques, postal orders and money orders are accepted ‘with the necessary precautions. Sureties cannot be accepted.
RS 40, 2008 p 9-13

(c) Section 59 can only be invoked prior to the accused’s first court appearance.

(d) A police official who acts in terms of s 59 does not have any power to determine special conditions relating to the accused’s release on bail. But a court may upon the prosecutor’s application add conditions to bail which was initially in terms of s 59 granted by a police official (s 59(2) read with s 62).

(e) The bail money must be paid at the police station concerned (s 59(1) (a)).

Discretion Of Police Official

In Shaw v Collins 1883 SC 389 it was suggested that an action for damages will lie in circumstances where bail is wrongly refused and the refusal is wilful and malicious, for example where the police official refused to exercise his discretion. In MacDonald v Kumalo 1927 EDL 293 the police officer empowered to grant bail went off duty at 17h00 and the bail register was locked up. This state of affairs prompted Graham JP to remark as follows (at 307–8): ‘This practice is certain to lead to abuse, and many presumably innocent men may be compelled to spend the night in a police cell on charges of petty offences, who undoubtedly would have been released if the officer had been present.’

The police official concerned, must exercise his discretion after consultation with the investigating official (s 59(1) (a)). Cowling 1996 SACJ 50 58 notes that this procedure ‘is to be commended since the investigating officer could well have knowledge of possible factors relevant to the release on bail which may not be available to a duty sergeant’. It should be noted that bail granted by a director of public prosecutions, or a prosecutor authorised thereto in writing by the DPP concerned, is also subject to the requirement that there must be prior consultation with the police official charged with the investigation.

SOURCE: Du Toit – Commentary on the criminal procedure act