GARDEN ROUTE NEWS - Community members are often upset when suspects in serious crimes are granted bail while the people think they are too dangerous to be allowed out in the community.

The most recent example was when six murder suspects were granted bail in the George Magistrate's Court.

In light of this, George Herald approached local lawyer Louise Luterek, an expert in criminal law from Luterek Attorneys, to clarify what a bail application entails.

Firstly it's important to realise that bail is not meant to be a judgement or sentence, but to secure the return of an accused to court. Also, the payable amount for bail does not indicate the guilt or innocence of an accused.

"The basic principle underlying the law on bail is that an accused is entitled to bail where the interests of justice permit," says Luterek.

Legally, someone cannot be assumed guilty simply because they have been taken into custody. "The accused can bring a bail application before court to be released on certain grounds, terms and conditions, as the court may impose.

"In terms of our country's constitution, all people have the right to be free and the right to a fair trial," she says.

Remember, an accused is not guilty until he or she is found guilty by the court.

What is bail, and what does the bail application entail?

The South African constitution makes provisions for those accused of a crime to have the right to bail, regardless of their crimes. Bail applications are a sensitive procedure and it is important to understand the process.

Bail is an amount the accused will pay to ensure that they are temporarily released if arrested for allegedly committing a criminal offence. The three types of bail applications include Police Bail, Prosecutor Bail, and Bail Applications in Court. 

The court will take into consideration several factors before granting bail.

The court will consider whether it will be in the interest of justice if a person is released on bail. An accused can bring their bail application at any stage before conviction. The court will also consider which schedule offence the accused is charged with. 

Schedule 6 offences, for example, bring a heavier burden on the accused to prove that there are exceptional circumstances that would allow for them to be released.

In a bail application the accused must also prove that:

• They will not endanger the safety of the public or person
• They will not evade trial
• They will not influence or intimidate witnesses or conceal evidence
• They will not undermine or jeopardise the objectives of our court system
• They will not disturb the public order or peace and security

Under these five stipulations are also a lot of other burdens or hurdles that the accused must overcome.

During the bail application, the accused has to inform the court of any previous convictions or pending cases. The court will consider all the information before making a decision.

The court may postpone the application for up to seven days. If the court grants bail, you must pay the required amount to a court clerk.

If bail is denied, one can only bring a new bail application on new facts before the court, or the whole bail application can go on appeal to a higher court.

Three different forms of bail applications:

• Police bail

This is subject to Section 59 of the Criminal Procedure Act 51 of 1977, which states that anyone arrested for a crime may apply for bail at a police station within 48 hours of the arrest before attending the first court appearance. This type of bail application will only be granted for minor crimes.

• Prosecutor bail

Subject to conditions set out in Section 59A of the Act, the Director of Public Prosecution (DPP) or a prosecutor authorised in writing by the DPP may allow a release on bail before the suspect's first court appearance - only if they have been charged with a Schedule 7 offence and after consultation with the investigating officer.

• Bail applications in court

If you have been charged with a Schedule 5 or 6 offence, you will have to make a formal bail application before the court. There are two ways to do this. The first involves applying for bail with an affidavit and the second entails calling the accused (yourself) or witnesses to the stand.

Schedule 5, 6 and 7 offences are defined as follows:

Schedule 5 offences include but are not limited to: murder, attempted murder, illegal dealing or smuggling of firearms, corruption, indecent assault, drug-related crimes, rape, extortion, fraud, theft or forgery to the value of R500 000.

Schedule 6 offences include but are not limited to: planned or premeditated murder and rape when committed in circumstances where the victim was raped multiple times.

Schedule 7 offences include but are not limited to: fraud or theft not exceeding R20 000, possession of drugs, robbery, assault, assault with intent to do grievous bodily harm and culpable homicide.

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