Essay
CRL 202 - Bail Essay
- Course
- Criminal Law
- Institution
- University Of The Western Cape (UWC)
This is a comprehensive and detailed essay on bail for CRL 202. Quality stuff!! U'll need it!!
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Bail Essay Possibilities:1. Constitution (s12 + s35)
2. Types of Bail x3 * can be an essay on its own
3. Factors (Nel case) + examples
4. Conditions (Oscar case)
*3 and 4 can be a combined essay + 1
Bail is the amount of money which is paid by the accused who is charged with an offence in terms of
South African law. Bail secures the attendance of the accused to trial. Bail has a non-penal character;
it is not a form of punishment for the accused. The accused gets the bail money back, except if he
does not attend the trial, then it will be contempt of court. Bail proceedings should be treated as a
matter of urgency and must be aimed at ensuring that the accused attends trial and maximises the
accused’s personal liberty.
S12 of the constitution 1996, states that everyone has the right not to be deprived of freedom
arbitrarily or without just cause. S35 of the constitution, 1996 also states that every person who is
arrested for allegedly committing and offence has the right to be released from detention if the
interests of justice permits. Subject to reasonable conditions.
There are 3 types of bail, namely, police bail, prosecutorial bail and court bail. The granting of bail is
usually a judicial function, however in certain circumstances the police may also grant bail. Bail may
be granted by the police for minor offences before the first appearance in a lower court i.t.o s59.
The police officer who determines bail, must consult with the investigating officer who is in charge of
the investigation. No conditions may be attached to police bail, the accused will be released on bail
after he/she has deposited a sum of money (cash payment) to the police station. The granting of
police bail is for minor offences such as public indecency (urinating in public).
Prosecutorial bail is regulated by the S59(a). the DPP or an authorised prosecutor may permit the
release of an accused who is in custody on bail in respect of certain offences such as; culpable
homicide, public violence, robbery etc. after consultation with an investigating officer. Prosecutorial
bail must be recorded in full, as well as the conditions imposed- for example the submission of the
accused’s passport to ensure that the accused is not a flight risk and attempts to flee from the
country and as result will not be able to appear for trial. The accused will be released on bail after he
has deposited a cash amount or guarantee (house bond) at the place where he is detained.
Prosecutorial bail only last until the first court appearance of the accused.
With court bail, lower courts and high courts have jurisdiction to hear bail applications S60. The bail
application of a person charged with a schedule 6 offence (serious offence) such as murder, rape and
treason, has to be heard by a magistrate’s court, or the prosecutor or DPP may direct in writing that
the application be heard before a regional court. Any lower court may postpone the bail proceedings
to any date not exceeding 7 days at a time. If a lower court refuses bail, the accused may appeal to a
high court. If a high court refuses bail, then the accused may appeal to the SCA. The DPP may also
appeal the release of the accused on bail.
The court has to consider certain factors when granting bail. The court has to consider whether the
accused will try to escape or flee from the criminal justice system. The court has to consider the
seriousness of the crime, whether the accused has a permanent residence, his family ties and
employment status. All these factors will give an indication of the degree of risk that the accused has
to flee. If the accused has a history of travelling frequently out of the country, and every month is in a
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