Getting arrested and finding yourself in police detention is one of the most unfortunate things that can happen to anyone. Especially when you are innocent. This is because detention/prison is not designed to offer all the comforts that one is mostly used to or would chose to have in the incidence of choice. Physical and emotional abuse by other hardened prisoners is rampant and the prisons’ capacity to protect every inmate is limited in some instances.

It is important to note that the question of guilt or innocence will not play much of a role when it comes to bail. The police are mandated to make an arrest if there are reasonable grounds to suspect that a person committed a crime and arrest is the most appropriate way to arraign the suspect before the court. This effectively means the police can arrest before investigations are complete.

What then will affect my bail application?

The factors that will be taken into consideration at the bail application proceedings include residence of the accused, previous criminal records, other pending cases before the courts, likelihood of the suspect absconding court or turning fugitive from justice, interests of the community, seriousness of the offence, exceptional circumstances that favour the accused being granted bail.

Let’s discuss a few briefly below.

An accused must be of fixed abode at an address that must be furnished to the police and confirmed as the address where the accused will be sought and found should it be necessary after release on bail and/or during investigations. Thus, should an accused fail to provide such an address, the court is most likely to decline bail as there is risk that if released on bail the accused may not be found if he absconds court. This does not mean the accused must be a home owner; even if he is renting or staying with his parents or relatives, those people must depose affidavits attesting that the accused indeed ordinarily resides with them at that particular address.

With regards to foreign nationals who do not have permanent residence in South Africa, there is a further requirement that their status must be confirmed whether they are legal in the country or not. If not, they will be kept in custody till finalisation of the matter and if found guilty they must serve the sentence first then handed over to Home Affairs for deportation.

Previous convictions or pending cases before the courts will not affect a bail application in the same way. Previous convictions reflect a propensity to commit crime on the part of the suspect, implying the suspect remained unrehabilitated after conviction and/or sentence. On the other hand, having a pending case before another court but without a previous conviction cannot be conclusive to say the suspect has a propensity to commit crime because a pending case has not been proven as yet, the suspect is innocent until proven guilty.

The seriousness of the offence affects bail applications because there are offences which the police can grant bail, others which the prosecutor can grant bail after hours, whilst some offences must only be done formally before the court. This then means if you are arrested on a Friday after hours for an offence where only the court can grant bail, your application will be considered on the following Monday or Tuesday (within 48 hours).

With regards to more serious offences, exceptional circumstances must be proven that favour the release of the accused on bail.

Thus, one can be innocent but still be denied bail as innocence will be proven at trial or at the close of the state’s case (Sec 174 proceedings) i.e which also does not necessarily prove innocence but that the state has not established a prima facie case against accused.