How is Bail Determined and Set?

There are many ways in which a person may describe the legal system. Not all of those are flattering but you’ll be hard-pressed to find someone who refers to it as ‘quick and painless.’ If you find yourself accused of a crime, you can expect the related proceedings to take quite a while to complete, regardless of whether or not you’re innocent. Luckily there is a system in place to assist those who do not wish to spend their free time in a holding cell. When accused of a crime you can apply for bail and (hopefully) you’ll regain your freedom until you have to appear for trial. How is Bail Determined and Set?

Bail can most easily be seen as a type of incentive for released individuals to ensure that they show up to their trial. If you show up on time and don’t break any bail provisions, your money will be returned. If you try to avoid the law or if you commit any further crimes, the money will be forfeited to the state. Determining bail, or allowing it in the first place, is left to the discretion of the court or investigating officer and may be influenced by multiple factors.

Before we get into any more detail, let’s first cover the basics.

Once a person is arrested, they are supposed to undergo a trial in court to determine their guilt or innocence. Unfortunately, this doesn’t always happen immediately. The accused is expected to be brought before a court within 48 hours of their arrest but that alone is quite a long time to spend in a holding cell. Additionally, if you’re arrested on a weekend or before a public holiday, this waiting period could be even longer. As a result, some people choose to apply for bail rather than wait until they can get to court.

How is Bail Determined and Set?

If your bail request is accepted, you can pay a determined sum to the court or to the police which will allow you to go free (sometimes with conditions attached) until it’s time to show up for your trial. You may also apply for bail once your trial has begun so that you are not held in confinement during the trial. If you do not show up for your trial, your bail will be forfeited to that state and a warrant for your arrest will be issued.

What are the Different Kinds of Bail?

There are 3 main forms of bail, they are –

  • Police Bail – If you have been accused of a minor crime (for eg, petty theft) you can apply for bail to the police before your first court appearance and within 48 hours of your arrest.
  • Prosecutor Bail –  You can also apply for bail before your first court appearance for more serious crimes provided the bail application is made to an authorised prosecutor. 
  • Court Bail – You can apply for a court bail at your first court appearance or at any time before your conviction.

It is extremely important that you receive a receipt after paying your bail. You will not receive your money back if you are not able to produce the receipt.

How is Bail Determined?

How is Bail Determined and Set?

Bail itself is highly contextual. The court has many variables to consider when granting or determining bail, that said, the main 2 factors that must be considered by a judge are –

  • The rights of the accused – Technically speaking, individuals should not be detained unless they have been found guilty of a crime, this is why there is a time limit in place that determines how long you can be held for before a trial must take place. Thus, a court must keep in mind that all individuals are innocent until proven guilty and that they should not be detained without valid reasoning.
  • The safety of society and the upholding of justice – While upholding the accused’s rights is extremely important, the court must also consider what kind of impact their release may have on the general public and on the course of the trial. If the court believes that there is good reason to suspect that the accused, if released, will endanger the lives of others in society, it may choose to deny bail. Additionally, if it is strongly believed that the accused will not return for their trial, the court may again deny bail or set a high bail to further entice their return.

When trying to figure out whether or not bail should be granted and the cost of said bail, the court must weigh these 2 factors against one another. While doing this the court may also consider other influencing components such as, but not limited to, –

  • The economic impact that may be suffered by the accused if they are detained.
  • How long the accused may spend in detention during the trial if bail is not granted.
  • The criminal record of the accused.
  • The societal ties of the accused (family, community, etc.)
  • The severity and violence of the alleged crime
  • The likelihood that the accused may attempt to evade the trial or leave the country.

Because there are so many different factors to consider with regard to bail, it’s easy to see why some people are given high bail amounts while others are not, or why bail is sometimes granted with certain conditions attached to it.

Can Bail be Denied?

Yes, if the court determines that the risks to society and the course of justice outweigh the benefits of the accused’s release, it may deny the bail application. As mentioned, this usually happens if the court believes that the accused will either endanger others or attempt to evade the law upon release.

How is Bail Determined and Set?

Can you be Released Without Bail?

Yes, especially when dealing with cases involving petty offences, the accused may be released with just a warning that they must return to court for their trial, although this warning may come with certain conditions similar to bail.

Is Bail Granted Immediately?

Not always, sometimes the court may request more information on the accused and their alleged crime before a decision is made regarding bail. As such, bail applications may be postponed for up to 7 days while information is being gathered.

Is Bail Refunded if you are Found Guilty?

Yes, so long as you show up to your trial on time, do not commit any crimes and do not break the conditions that may have been attached to your bail, your bail will be refunded to you regardless of the outcome of the trial.

What Happens if I Can’t Afford Bail?

If you do not have the necessary funds to pay for your bail, you may request that the court reduce the amount. If you still can’t afford it, you will be placed into a faculty until, and during, your trial, this is known as remand detention.

Does Bail Influence the Outcome of the Trial? – How is Bail Determined and Set?

One of the most common misconceptions with regard to bail is the idea that being granted bail is either a substitute for an actual trial or an indicator that the trial is going well. Neither is correct. Being granted bail simply means that the court does not believe the accused is a danger to society, a flight risk or is likely to avoid their trial.

After you have been granted bail you will still need to show up to your trial and you may still be found guilty.

In Conclusion – What is Bail and How is it Determined?

Bail is an amount of money sometimes paid to the court or presiding officer when an individual is released before or during their trial to help ensure that they return to complete all legal proceedings. So long as the accused returns to court when specified, does not break the law, and abides by any extra conditions set with the bail, the full amount will be refunded after the trial, regardless of the outcome. Bail can therefore be seen as an incentive aimed at ensuring that those accused of wrongdoing return to complete their trial lest their bail is forfeited to the state.

There are 3 main forms of bail – Police and Prosecutor bail can be paid before the trial begins so that the accused is not detained during that period, alternatively, Court bail is paid either at the beginning of the trial or during the trial so that the accused is not detained in the interim.

How is Bail Determined and Set?

The amount that needs to be paid for bail is determined by weighing the interests and rights of the accused (who is guilty until proven innocent and who should not be held unless proven guilty in a court of law) with the interests of society and justice. The court must consider multiple factors including whether or not the accused if released, will pose a danger to society or will try to evade their trial. If such a danger is too great, the court may deny bail or set a high bail to further entice the accused to abide by the law and return to court on time.

When dealing with minor crimes or individuals who are unlikely to run from the law and commit other offences (ie, those with strong social ties and no criminal record) the court may choose to release the individual without bail and instead simply give them the warning to return when directed.

Bail applications may take up to 7 days to be considered and should not be seen as an indicator of how the trial is going or as a substitute for the trial itself. Bail is simply an acknowledgement that the accused is unlikely to break the law or evade justice along with an incentive to ensure that the rules are followed.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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1 Response

  1. June 2, 2021

    […] Yes, they can. Chapter 2 Section 36 of the constitution makes provisions for rights to be limited in certain scenarios. For example, you have a human right to not be detained without a trial, however, if you are arrested, the state may believe that you will not show up to your trial if you are temporarily released. As such, the state may hold you in custody for a short time (thus limiting your aforementioned right…. […]

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