By: De Vries Attorneys  03-23-2011
Keywords: Law Firm, Litigation Attorney, Conveyancing lawyer

 BAIL: A Practical Approach Despite the fundamental principle of a presumption of innocence and a constitutionally enshrined right to freedom, our current legislation pertaining to the granting of bail, particularly for more serious crimes, is not rights-friendly. In the relatively recent past, ie pre-1997, the State was required to motivate for reasons to continue the detention of an accused person. Today however the onus falls on the accused to satisfy the court on a preponderance of probabilities that "the interests of justice" do not require his confinement and, in matters involving very serious offences, such as premeditated murder, robbery with aggravated circumstances, certain categories of rape and the like, in balancing the conflicting rights to freedom of the accused against the interests of society and the complainant, the courts lean towards the refusal of bail unless the accused can adduce evidence of "exceptional circumstances" to justify his release. That said, for offences judged "less serious" such as for instance petty theft, common assault and driving whilst under the influence of alcohol, it may be relatively easy to obtain release on bail. Arrest on a warrant When arrested on a warrant, such as one issued in respect of traffic offences and often encountered during a checkpoint at a road block, the accused is entitled to view the warrant. If arrested under suspicion for driving under the influence of alcohol though, no warrant is required. What to do (and not to do) if you are arrested An accused is obliged to provide the arresting officer with his name and address. However he has a constitutional right to remain silent, of which the officer must inform him, and does he not have to assist the police in building up a case against him. For this reason an accused is not obliged to give any statement or explanation, although in certain cases - such as where a person is mistakenly suspected of having committed an offence and an explanation would set the matter in correct perspective - it may be expedient to do so. If he is in any doubt, the accused is advised to contact his attorney before uttering a word. An accused under the age of 18 is entitled to be assisted by his parent or guardian. When may a bail application be brought Whilst in previous years courts would convene after hours to hear bail applications pertaining to more serious matters, this is no longer the case as regards adults and persons accused of such offences are obliged in the ordinary course of events to wait until they are brought before a court before they may apply for their release on bail. Whilst an accused is entitled to request bail at his first appearance in court the State may also request that the magistrate keep him in custody for periods of up to 7 days at a time in order to establish factors such as his identity or fixed address which would assist the court in determining whether or not it is in the interests of justice that he be released. It falls to the magistrate to accede to or dismiss this request from the State. If arrested on a "less serious charge", a police officer or state prosecutor may set bail prior to the accused appearing in court. Permitted time periods of detention Whilst any person between the ages of 14 and 18 may be arrested and detained for a maximum period of 24 hours, an adult may be detained for 48 hours or longer, if the 48 hour period ends on a Saturday, a Sunday or a public holiday. However, should a person be arrested during court hours - that is, between 9h00 and 16h00 on a court day - he has a right to be brought before court rather than being forced to wait for the next court day. If he is arrested outside of court hours - that is between 16h00 on one court day and 9h00 on the next court day, or over a weekend or a public holiday - and the offence is not one upon which either the police or the prosecutor may consider bail, the accused will unfortunately have to wait until the next court day to bring his application for release on bail. Any person under the age of 18 must be detained separately from any adult accused. Who may release an accused Depending on the seriousness of the offence as set out in the various Schedules to the Criinal Procedure Act, an accused person may be released by: a police officer; a State Prosecutor; or by a Court "Police bail" A police officer over a certain rank may, immediately after arrest, release an accused person on "less serious offences", such as driving under the influence of alcohol, where it is apparent that the accused is unlikely to evade his court appearance and where it would be humiliating and inconvenient for him to be incarcerated pending this first appearance in court. The police official considering such release is required to consult with the investigating officer before releasing the accused. Should such consultation prove impossible the police official may however use his or her own discretion depending on the circumstances of the matter and the non-availability of the relevant investigator. It is an important but often-overlooked principle that police officials ought to remember that their function is not to punish people by means of unnecessary incarceration and that the rights and dignity of a citizen may not be unnecessarily affected by a detention. The releasing officer may only set an amount of money to be paid and is not entitled to set any conditions. The bail must be paid in cash and a receipt stating the offence and the time, date and place at which the person accused must appear in court must be issued. It is vital to retain this receipt for purposes of recouping the bail money once the matter is finalized in court. As the purpose of setting bail is to ensure that the accused person stands trial, he must appear in court on the date, time and place set out in his bail receipt. A failure to appear in court is viewed in a serious light and a Court may order the bail forfeit if an accused is found to be willfully negligent in failing to attend court. Should this occur the accused may be detained in custody or a new bail amount may be set. The State Prosecutor The prosecutor on after hours bail duty is empowered to set bail for a variety of so-called "schedule 7 offences", including culpable homicide, assault involving the infliction of grievous bodily harm, theft and fraud not exceeding a value of R20 000.00, forgery, robbery and the possession of drugs, after consultation with the investigating officer assigned to the case. An accused is entitled to make a telephone call to a family member or to his legal representative after being arrested and in practice it is the attorney who makes arrangements with the prosecutor to set bail. This necessarily involves the assistance of the investigating officer and the presence of the docket which, in practice may be far more challenging than one could imagine being possible. If an investigating officer has in fact been assigned to the matter, he has to complete certain administrative tasks and paperwork regarding the charging of the accused and it is not uncommon for the attorney to be frustrated in her attempts to unite the investigator and his docket, particularly in the late afternoon or over a weekend. However, the prosecutor may in these circumstances consult the arresting officer or a senior officer on duty and, if this is impossible, may consider the release of the accused at his own discretion. It is unfortunately suspected in practice in some localities that certain officers and attorneys have an unusually close working relationship and the accused person wanting to bring a bail application is advised to decline any suggestion that a police officer contact an attorney to represent him on his behalf. Paradoxically and due to the formulation of the Schedules, offences under Schedule 7 may also in certain circumstances become more serious Schedule 5 offences, on which a prosecutor may not adjudicate and where the "reverse onus" on the accused to prove to a court that his release is in the interests of justice may apply. However this occurs when the accused has previous convictions or was released on bail on another matter prior to being arrested on a second one and is unlikely to be relevant to the average person who unfortunately clashes with the law and qualifies for release on bail by a prosecutor. Unlike the releasing police officer, the prosecutor who sets bail is empowered too to set certain reasonable conditions which the accused must comply with and the accused will have to appear in court on the first court day following his release. The Court Any court before which an accused appears who is in custody in respect of an offence in respect of which neither a police officer nor a prosecutor may set bail, such as a serious theft, fraud, housebreaking, robbery, murder (premeditated or otherwise) is obliged to inform him of his rights to apply for bail. Flowing from this, an accused is entitled to be released on bail if the court is satisfied that "the interests of justice" so permit or if the court is satisfied that "exceptional circumstances" exist, depending on whether the offence is classified under Schedule 5 or Schedule 6. It is advisable for an accused appearing on serious charges to secure the services of an attorney when bringing an application for his release on bail and the attorney will conduct the formal bail application in court. The Court is entitled to set any conditions for the release of the accused, which may range from the accused surrendering his passport, or reporting regularly to a police station, or refraining from making contact with a witness. What to do in the event of being arrested Firstly, remain calm, collected and, above all, polite. Hopefully you are being arrested on a relatively "minor" charge, such as driving under the influence of alcohol and your chances of a speedy release are inversely proportional to your spirit of cooperation with the police who are, after all, only doing their job. (And if there are elements of injustice these may be addressed by a civil claim later on but there is no point in become unnecessarily traumatised in the interim.) Secondly, provide your name and address and quietly accompany the officer to the district surgeon or nurse who will test you and draw your blood. Resistance during this process may result in further charges being brought against you, which is counter-productive in the long run. However, you are not obliged to make any statement as to what you have drunk or in what quantities. Although the doctor may ask you for this information you will in all probability not yet have been informed by the police officer of your right to remain silent and do not have to answer this question. Politely assert your right to remain silent in this regard. Also, do not allow yourself to be pressured into permitting your vehicle to be towed away by a third party, such as a towing service. You have a right to contact a friend or family member to assist you in this regard and, again, it is not unknown for certain police officers and towing operators to have an unnaturally 'close and friendly' association. What to expect in the event of being arrested on a relatively minor charge The spectre of possessing a criminal record and all its attendant complications - the effect on future job applications and the possibility of being denied access to countries in the event of future international travel is sufficient threat to most individuals to refrain from unlawful behavior. However, whilst there is always the possibility of that "Oops" moment, this need not necessarily be a death knell for your future. Statistics indicate that approximately half of all cases which originally appear in court are withdrawn. The reasons for this are legion and varied but statistically speaking there is a reasonable chance that your matter will not ultimately be prosecuted. Insofar as alcohol-related matters are concerned, the State laboratories are totally understaffed and overburdened. As a result the charges will in all likelihood be withdrawn at or prior to your first appearance in court and you may be re-summonsed, if at all, on average only approximately 18 months later. Even then, there are frequently alternatives to prosecution, such as a diversion to community service which may be negotiated with the Senior State Prosecutor or office of the Director of Public Prosecutions. Again, consult an attorney who will advise you as to the best course of action given the unique facts of the charges you face. - Tanya Nöckler (March 2009)

Keywords: Conveyancing lawyer, Family Law Lawyer, Law Firm, Litigation Attorney