What is bail, and are you eligible for it?

Tristan Moodley – Candidate Attorney

The procedure for an application for the release of an accused on bail may vary by jurisdiction and according to the seriousness of an offence. Bail is one of the methods of securing the attendance of an accused person in court.

An accused person is entitled at any stage of the proceedings brought against him/her to apply for bail, thereby temporarily releasing him/her pending the outcome of the case. It must be borne in mind that the general rule surrounding an accused person’s release on bail should be in the interests of justice to do so.

The right to be released from custody on bail is entrenched in Section 35(1)(f) of the Constitution of the Republic of South Africa, 1996, which records that any individual who has been arrested for allegedly committing an offence “has the right to be released from detention if the interests of justice permit, subject to reasonable conditions”.

It is trite law that there are three types of bail which can be afforded to an accused, which will be discussed in detail below:


In terms of section 59 of the Criminal Procedure Act, 51 of 1977 (“the Act”), an accused person may be released on police bail before his/her first appearance in a lower court. Police bail is granted whilst an accused is detained at police cells for less serious offences such as common assault, driving under the influence of alcohol and theft by way of shoplifting.


Prosecutorial bail is regulated by Section 59A of the Act. When an accused is charged with offences such as assault with the intent to do grievous bodily harm, culpable homicide, arson, malicious injury to property, possession of drugs and fraud, prosecutors have the authority to release an accused on bail whilst being detained at police cells.


When accused are charged with more severe offences such as murder, rape, kidnapping and armed robbery, an accused will need to formally apply for bail in a lower court. The court will consider various factors, such as whether the accused is a flight risk when adjudicating on the application.


With the most well-known experts at BDK Attorneys, we will immediately be able to assist should you find yourself in any of the aforementioned scenarios.

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