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48 hours, a few hours or none: the need to know on after hours bail

For some, being arrested is part of a routine but for others it is a daunting first where they enter the ominous world of ‘the cells.’ Those who have been around the block once or twice know what needs to be done and which options are open to them at that point in time. First timers and their family members, however are not always as clued up. When they get arrested the first thing that comes to mind is the ’48 hour rule.’ Some merely accept it and impatiently wait it out, oblivious to the fact that the possibility exists for them to be released before appearing in court.

The Criminal Procedure Act 51 of 1977 makes provision for release by either a police official or by a public prosecutor after arrest but before the accused’s first court appearance. The circumstances under which these officials may grant bail is limited by the act to specific offences.

Bail by a police official is regulated by section 59 of the act which limits these powers to officials of or above the rank of a non-commissioned officer and only after consulting with the investigating officer in charge of the matter. A police official has no power to grant bail where the accused is charged with any offence listed in schedule 2 part II and III of the act which lists more serious offences, including some over which the prosecutor would have the necessary authority to grant bail. Police officials need not wait out the full 48 hours before releasing an accused.

Police can grant bail on a charge of possession of drugs but only where the amount of drugs is 115 grams or less and where the type of drug is not considered to be a “dependence-producing drug.” They are allowed to grant bail on a charge of theft where the amount does not exceed R2 500 but they can not grant bail on charges of housebreaking or robbery. They can grant bail on a common assault charge but not where a grievous bodily injury was inflicted. These are but a few examples. It should be borne in mind that police officials are not obliged to grant bail on these charges but may use their discretion on whether to release the accused or not.

A public prosecutor who has been duly authorised will be able to grant after hours bail in terms of section 59A of the act for offences listed in schedule 7 of the act. The prosecutor’s powers are limited to these specific offences and he or she is obliged to consult with the investigating officer of the matter prior to exercising his or her discretion to grant bail or not. An accused in these circumstances is required to have a legal representative acting on his or her behalf in order for the prosecutor to proceed. Offences listed in schedule 7 include, but are not limited to, culpable homicide, housebreaking, assault involving the infliction of grievous bodily harm and theft or common robbery where the amount does not exceed R20 000.

Anyone who has been arrested needs to first be formally charged with an offence before his release can be negotiated. Release on police or prosecutor bail is also not absolute and needs to be extended by the court when the accused appears in court for his first appearance.

Should the accused find himself in the unfortunate position where police and/or prosecutor bail was either denied or not a possibility at all, bail can be granted by the court in terms of section 60 of the act. This will be the only route after the accused has appeared court which in terms of the act may not be more than 48 hours after being arrested.

Where there is a will there is a way…

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.