Bail: Who determines what amount should be posted as bail?

For those who do not recognise the term “bail” and those who are not familiar with the term, bail is best defined as a method of securing the attendance of an Accused person after his/her arrest at his/her subsequent trial. Although the Criminal Procedure Act 51 of 1977 (herein after referred to as “the Act”) contains other methods of securing the attendance of an Accused person at his/her subsequent trial, the purpose of this explanatory is to provide insight into what factors are considered when affixing a bail amount by a Court.

The Court in which a bail application is enrolled has discretion in terms of the Criminal Procedure Act 51 of 1977 to impose a condition on an Accused person that his /her release on bail shall be contingent on the payment of a specified sum of money. The sum of money affixed by the Court is left to the discretion of the Court.

An Accused person can therefore be released after his/her arrest by paying a sum of money as determined by the Court after taking into account a comprehensive list of factors/considerations.

Bail and a nominated third party

The money paid by an Accused person, or a nominated third party, is regarded as security that such person will attend to every Court appearance in a criminal matter until the matter is finalised. If the Accused person fails to attend to Court and cannot provide a satisfactory explanation to the Court for failing to attend, the bail money will likely be forfeited to the State and the Accused person remitted into custody until conclusion of the matter.

There have been many public outcries regarding lesser bail amounts imposed on Accused persons charged with committing very serious offences. It is however noteworthy and prudent to state that the imposition of an unaffordable bail amount effectively equates to a refusal of bail. Therefore, the payment amount imposed on an Accused person as a condition of bail must consider the affordability of an Accused person to pay such amount.

Condition of bail

In terms of Section 60 (2B) of the Act, if the payment of a sum of money is determined as a condition of bail, the Court must hold a separate inquiry which will be aimed at determining whether the Accused person can afford such an amount or any other appropriate sum.

If the Court finds during the inquiry that the Accused person cannot afford the amount imposed, the court must consider setting appropriate conditions that do not include an amount of money for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as provided for in the Act.

If the inquiry proves that an Accused person can afford the amount imposed, the court must consider setting conditions for the release of the accused on bail and a sum of money which is appropriate in the circumstances.

The function of the bail Court

In conclusion, where an Accused person is released on bail and the payment of a sum of money is ordered by the Court as a condition, this should not be construed as an indication of the strength of the case against such an Accused person. The function of the bail Court is to determine whether the Accused person is eligible to be released on bail and further, if found to be eligible, what factors to impose on such an Accused person. The innocence or guilt of an Accused person is for the trial Court to determine.

Article by Benedict Asia, Attorney at Faure & Faure Inc.  For more information, contact 021 871 1200 or email contact@faurefaure.co.za

Benedict Asia, Attorney at Faure & Faure Inc. Contact him for more information on bail.
Faure & Faure Inc. – Your partner in Law in the Paarl and Boland Area.

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