The South African legal system provides that every accused person in court has the right, at any stage before conviction, to apply for bail.

“The granting of bail to an accused is not a conviction, but an attempt to ensure that the accused returns to court,” explains attorney Stefan Scheepers.

Among the public, there is often uncertainty about what bail is, and when it is granted.

Scheepers says it is important to remember that you are innocent until proven guilty by a court.
The burden of proof does not lie with the accused to prove his/her innocence, but with the state to prove guilt. The standard for conviction is higher in a criminal court than in a civil court. In a criminal court, guilt must be proven beyond reasonable doubt, as opposed to a civil court where the balance of probabilities applies.

“Section 50(6) of the Criminal Procedure Act 51 of 1977 deals with the right of every accused in court to apply for bail at any stage before conviction,” says Scheepers.

He further explains that South African law classifies offences from Schedule 1 to 6, and factors that will be considered when a bail application is brought before the court include the following:
* Is the accused a flight risk?
* Would releasing the accused on bail pose a danger to public order?
* Is there a risk that the accused may interfere with the state’s witnesses?
* Has evidence been presented in court regarding threats made by the accused against any parties involved in the case?
* Is there a possibility that the accused may tamper with evidence?
* Does the accused have previous convictions?
* Is the accused currently out on bail or parole for other offences?
* Does the accused have assets, liabilities and/or an income?

All the above factors must be taken into account by the presiding officer, and the decision on bail must be made in the interest of justice.

Certain bail conditions will apply. Bail conditions may include reporting to a police station on specified days and times, paying the determined bail amount at court, and not interfering with state witnesses.
The accused is also warned to be present at the next court appearance.

“The bail amount is not an indication of how guilty or less guilty the accused is,” says Scheepers.
The amount is determined solely based on the accused’s financial means. In some cases, part of the sentence may include forfeiture of the bail paid. If an accused fails to appear for a court appearance, the bail money is also forfeited.

In some cases, the court can decide to release an accuse on warning, which by implication means no bail is paid. This however does not mean that charges are withdrawn, and the trail is still to continue. The accused is warned to appear before court on the set court date.