When In Court
When the accused goes to court the magistrate will take into account the following criteria to determine whether the accused should be released on bail.
(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:
[Words preceding para (a) substituted by s 9 (b) of Act 62 of 2000.]
(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
[Para (a) substituted by s 4 (c) of Act 85 of 1997.]
(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;
(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence 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;
(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; or [sic]
(11B) (a) In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court whether—
(i) the accused has previously been convicted of any offence; and
(ii) there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges.
(b) Where the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph (a), whether in writing or orally, the accused shall be required by the court to declare whether he or she confirms such information or not.
(c) The record of the bail proceedings, excluding the information in paragraph (a) , shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.
(d) An accused who wilfully—
(i) fails or refuses to comply with the provisions of paragraph (a); or
(ii) furnishes the court with false information required in terms of paragraph (a),
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.
Depending on the seriousness of the offence both in a schedule 5 and 6 bail application the onus is on the defence.
In a Schedule 5 bail application the accused has to prove it is in the interests of justice that he gets released.
In a schedule 6 bail application the accused has to prove exceptional circumstances are present to permit his release.