Bail Applications



Bail is the release of an accused person upon the payment of a sum of money, with the express condition that the accused person will appear at a certain court on a specified date in the continuation of a criminal case.




An accused person can obtain bail by applying for bail. A bail application can be done either by way of an afterhours bail application through an attorney, or by formally requesting bail once the accused person has been brought before a Court through an attorney. Having a bail attorney is always advisable when applying for bail.


The different ways in which an accused can be released on bail, namely:

  1. After an arrest at the police station with the assistance of an attorney(also known as after hours bail):
  1. On warning by the police;
  1. By payment of a set amount set by the police; and
  1. By the payment of a set amount by an after hours prosecutor
  • In court and with the assistance of an attorney:
  • The setting of a specific set amount by the prosecutor;
  • Through a formal bail application, which if successful will result in the setting of a specific amount of bail to be paid; and
  • A Section 62(f) of the Criminal Procedure Act on certain conditions.




  • Police warning or police bail:
  • There are a number of crimes from which the police officer who is investigating your case can set an amount of bail or release you on a warning.
  • These are usually the less serious crimes. A short list of common crimes for which the police are allowed to set bail are crimes like:
  • Illegal possession of drugs – marijuana specifically – less than 115 grams.
  • Assault
  • theft below the value of R2500.
  • Driving under the influence of alcohol, the so called DUI cases.
  • Reckless and or negligent driving and
  • malicious damage to property, to name but a few.
  • It is important to note that many crimes have surrounding factors that could possibly influence how serious the police consider the crime to be. An example would be a charge of drinking and driving- DUI. If the accused was involved in an accident, the police will not set bail for the arrested person, and the arrested person will have to get an after hours prosecutor out to release him/her on bail.
  • After having been arrested the Accused Person will have to be processed by the police officer who investigates the matter. The Investigating Officer will then check aspects like the following:
  • if the accused has outstanding warrants,
  • if the accused has other pending cases.
  • The accused residential address will also be verified in order to establish if he indeed stays where he claims.
  • Once that has all been done and the bail profile of the accused has been checked, the investigating officer may release the accused on warning or bail.
  • The investigating officer does this at his own time as they are often confronted with a large number of dockets to process. There is no guarantee when or even if they will release the accused on bail. Family members often contact a bail attorney to assist in this process and help expedite the release of the accused on bail.
  • Prosecutor bail:
  • In more serious matters a bail attorney can contact the afterhours bail prosecutor to set bail. The bail prosecutor can be called out to set bail for an accused in consultation with the investigating officer in the case. Bail can be set by the bail prosecutor for several crimes like:
  • Assault with the intention to do grievous bodily harm;
  • Robbery, aggravating circumstances;
  • Theft over the amount of R2500;
  • Illegal possession of dependence producing drugs;
  • Extortion;
  • Fraud;
  • Malicious injury to property;
  • Arson;
  • Bestiality;
  • culpable homicide (also known as manslaughter) and
  • public violence.
  • In order to call out the after hours bail prosecutor you will need to contact a bail attorney to assist you.
  • Similar to police bail there are a number of processes that needs to be complete in order for bail to be set. This is referred to as the bail profile of the accused. Once the bail profile of the accused is complete and favorable for him to get bail, it can then be set. The after hours prosecutor will set bail if the investigating officer does not object to the bail being set.
  • Bail application in Court
  • If you did not apply for bail in an after hours bail application, or the after hours prosecutor refused your release for some reason, you will appear in court whilst still in custody. You can now formally request to be released on bail by the court.
  • If you have an attorney, who you have instructed to apply for bail on your behalf, all the necessaries will be taken care of during this court appearance to secure your loved one’s release. If you have no attorney, the court will enquire whether you want to be released on bail. However once again, it is always advisable to always have an attorney who can make the application for bail for you.




  1. Prosecutor agreeing to bail being set:
  1. The prosecutor can agree to you being released on bail, in which case you will then be released on either warning or a fixed amount of bail. Once bail is paid you will be released from prison. A bail lawyer can assist in the negotiation of the bail amount and possible bail conditions that will make this process easier.
  • Prosecutor opposing bail
  • The state can oppose your release on bail for one of many reasons, in which case the bail application will be set down on a set date for a formal bail application. As a result you will be kept in a prison pending the outcome of the formal bail application.
  • Prosecutor requires more bail information
  • It is possible that the prosecutor does not have enough information to determine if they want to oppose bail or not. In such a scenario they request a 7 day remand to obtain the outstanding bail information. This means that your case will be remanded for not more than 7 days at a time to obtain the outstanding information. During this time you will be kept in a prison awaiting your next court appearance.
  • This kind of remand can be requested for any number of reasons. It is often used to determine if the accused has previous convictions and to confirm the accused physical address. It is also often used to confirm an alternate address for the accused person to stay if there is some problem with the address he supplied to the police during his/her arrest. This is no exhaustive list of reasons for which the state can ask a remand for 7 days. Anything that can have an effect on the setting or not setting of bail, is all fair game in such a request for a remand.
  • Approaching a bail attorney to assist in the bail process can actively prevent this kind of remand from occurring, possibly ensuring the early release of the accused.

For more information on Bail Applications contact our firm and one of a highly qualified staff members will discuss the matter further.