Types of Bail in South Africa

Bail is the temporary release of an accused person from custody while their criminal case is still before the court. In South Africa, bail is regulated by chapter 9 of the Criminal Procedure Act 51 of 1977, and the right to apply for it is protected by section 35(1)(f) of the Constitution of the Republic of South Africa, 1996.

Not every accused person is released in the same way. The Criminal Procedure Act recognises several different types of bail, and the route that applies depends on the seriousness of the offence, the schedule into which the charge falls, and which authority is available to consider release at the time.

This article sets out the main types of bail in South Africa, how each one works, the role of Schedules 1, 5 and 6 of the Act, and what happens when bail conditions are broken.

What Bail Means Under the Criminal Procedure Act

Under the Criminal Procedure Act 51 of 1977, bail is release from custody on condition that the accused attends court on the dates set down, obeys any conditions imposed, and does not interfere with the State’s case. Bail is not a finding of innocence. It is a way of balancing the liberty of the accused against the interests of justice while the trial is pending.

The amount, the form (cash, fixed property, or a guarantee), and the conditions are decided by the authority handling release. That authority may be a police official, a senior public prosecutor, or a magistrate or judge, depending on the type of bail.

Police Bail (Section 59)

Police bail is provided for in section 59 of the Criminal Procedure Act. It allows a police official of or above the rank of non-commissioned officer to release an accused who has been arrested, without taking them to court, where the alleged offence is listed in Schedule 1 of the Act.

Schedule 1 covers relatively minor common-law and statutory offences, such as ordinary assault, common robbery without aggravating circumstances, theft under a certain value, and possession of small quantities of scheduled substances. Police bail is typically dealt with at the police station, often after hours or over a weekend.

Before releasing the accused, the police official must be satisfied that:

• the accused has a fixed residential address and can be located;
• there is no real risk that the accused will evade trial;
• there is no real risk that the accused will interfere with witnesses or destroy evidence; and
• the ends of justice will not be defeated by the release.

Police bail is fast and inexpensive, but it is only available for Schedule 1 matters. Anything more serious has to go through a higher authority.

Prosecutor’s Bail (Section 59A)

Section 59A of the Act allows a senior public prosecutor, or a public prosecutor authorised in writing, to fix bail and release an accused without a formal court hearing. Prosecutor’s bail is used for offences listed in Schedule 1 and certain offences in Schedule 2 of the Act, usually when the accused was arrested after hours or when the court cannot sit promptly.

The prosecutor applies broadly the same considerations as the police under section 59, but with wider reach and at a higher amount where the offence justifies it. As a general rule, prosecutor’s bail cannot be granted for offences listed in Schedule 5 or Schedule 6, because those require a formal judicial enquiry.

If the prosecutor is not satisfied that release is appropriate, or if the charge is too serious, the accused must be held for a formal bail application before a magistrate.

Formal Court Bail (Section 60)

Section 60 of the Act governs bail applications decided by a court. This is the full interests-of-justice enquiry and is the route used for serious offences, including anything falling under Schedules 5 and 6. The accused, usually through an attorney, leads evidence and makes argument before a magistrate or judge.

The court must release the accused on bail unless it finds that the interests of justice do not permit it. Section 60 lists the factors the court must weigh, including:

• whether the accused is likely to evade trial;
• whether the accused is likely to interfere with witnesses, conceal evidence, or collude with co-accused;
• whether the accused has previous convictions or is on bail or warning in another matter;
• the likely sentence on conviction; and
• the interest of the community and the safety of the public, including the complainant.

The enquiry is factual. Affidavits from the investigating officer, the accused, and sometimes family members or employers are placed before the court, and the prosecutor may cross-examine or oppose.

The Role of Schedules 5 and 6 (the Reverse Onus)

For ordinary Schedule 1 offences, the starting point under section 60 is that the State must show why bail should be refused. For offences listed in Schedule 5, and especially Schedule 6, that burden shifts.

Schedule 5 covers serious offences such as robbery with aggravating circumstances, certain drug offences involving large quantities, and corruption above defined thresholds. Where the charge falls under Schedule 5, the accused must adduce evidence satisfying the court that the interests of justice permit release.

Schedule 6 lists the most serious offences, including murder, rape, trafficking in persons, and armed robbery. Where an offence is listed in Schedule 6, the accused must show exceptional circumstances justifying release. This is a heavy burden, and Schedule 6 bail applications are seldom granted without strong, particularised evidence.

The schedule distinction is the single most important factor driving how a bail application is run and what evidence is needed.

Release on Warning (Section 62)

Section 62 of the Act allows a court to release an accused on a warning instead of requiring payment of bail money. The accused signs a warning to appear in court on a stated date and is released without depositing cash. The court can attach conditions, such as reporting to a police station, surrendering a passport, or remaining at a fixed address.

Release on warning is common in less serious matters and where the accused has stable ties, no relevant previous convictions, and poses no obvious flight or interference risk. It produces the same obligation to attend court as cash bail, and a breach carries the same consequences.

Conditions of Bail and the Consequences of Breach

Whatever type of bail is granted, the accused must comply with the conditions set. Typical conditions include reporting to a particular police station on set days, not contacting the complainant or State witnesses, surrendering travel documents, and attending every court date.

If an accused fails to appear in court on the appointed date, or breaches a material condition, the consequences under sections 62 and 67 of the Act are serious:

• a warrant of arrest is issued for the accused;
• the bail money may be forfeited to the State; and
• the accused may be charged with the separate offence of failing to attend court.

Where the absence was genuinely unavoidable, for example sudden illness, the accused or their attorney must notify the court and lodge an explanation with supporting documents as soon as possible.

Frequently Asked Questions

What are the main types of bail in South Africa?

The main types are police bail under section 59 of the Criminal Procedure Act 51 of 1977, prosecutor’s bail under section 59A, formal court bail under section 60, and release on warning under section 62. The route depends on the seriousness of the offence and the schedule into which the charge falls.

What is the difference between Schedule 5 and Schedule 6 bail?

For Schedule 5 offences the accused must adduce evidence satisfying the court that the interests of justice permit release. For Schedule 6 offences, which include murder, rape and armed robbery, the accused must show exceptional circumstances justifying release. Both schedules place a reverse onus on the accused.

Who decides the amount of bail?

It depends on the type of bail. A police official decides police bail under section 59, a senior public prosecutor decides prosecutor’s bail under section 59A, and a magistrate or judge decides formal bail under section 60. The amount is fixed with reference to the seriousness of the offence, the accused’s personal circumstances, and the risk of flight or interference.

Can bail be refused?

Yes. The court must refuse bail if the interests of justice do not permit release, which includes a real risk that the accused will abscond, interfere with witnesses or evidence, or commit further serious offences while on release.

What happens if the accused does not attend court while on bail?

A warrant of arrest is issued, the bail money may be forfeited to the State, and the accused may be charged separately with failing to attend court. If the absence was unavoidable, the accused or their attorney should notify the court immediately and provide supporting proof.

Get help with a criminal law matter. Otrebski Attorneys is a 100% women-led, Level 4 B-BBEE firm with a single Sandton office and a dedicated Criminal Law department. Director Nastasja Otrebski and our criminal defence team prepare and argue police bail, prosecutor’s bail, and formal section 60 applications, including Schedule 5 and Schedule 6 matters, for clients across Gauteng and South Africa.

Disclaimer. This article is general information about the law of bail in South Africa and is not legal advice for any specific case. Bail outcomes depend on the charge, the schedule, the evidence, and the particular court. For advice on a live arrest or pending bail hearing, consult a qualified attorney as early as possible.