One of the first questions asked after a drinking and driving arrest in South Africa is how much bail will cost. The honest answer is that there is no fixed tariff. Bail for driving under the influence is not a price list that the police or a magistrate works through. It is a decision made on the specific facts of each case, under the framework set out in the Criminal Procedure Act 51 of 1977.
In many drinking and driving matters the accused is not asked to pay any money at all. A first-time offender with a fixed address, stable employment, and no previous convictions is frequently released on a written warning to appear in court (the J534 form), or on police bail set at the station. Where the matter is more serious, or where there are previous convictions, bail may be set by a magistrate at a formal bail hearing.
This article explains, in plain South African English, how bail works for a drinking and driving charge, what the police and the court take into account, and why any specific rand figure quoted without reference to the facts is misleading. It is general information, not legal advice.
Is There a Fixed Bail Amount for Drinking and Driving?
No. There is no legislation, regulation, or fixed schedule that prescribes a set rand amount for bail on a drinking and driving charge. Driving under the influence is an offence under section 65 of the National Road Traffic Act 93 of 1996, but that section deals with the offence and its penalties, not with bail.
Bail is governed by a completely separate statute, namely section 60 of the Criminal Procedure Act 51 of 1977, together with Schedules 1 to 6 of that Act. Section 60 sets out the interests that the police or a court must balance when deciding whether to release an accused, and on what conditions. Those interests include the liberty of the accused, the public interest, and the administration of justice.
Any website or person who quotes a single figure, such as “R1,000 for a first offence,” is not giving you reliable legal information. That figure may be appropriate in one matter and completely wrong in another. The only accurate answer is that the amount, if any, depends on the facts.
How Bail Is Determined Under Section 60 of the Criminal Procedure Act
Section 60 of the Criminal Procedure Act gives a police official (at the station, for less serious matters) or a magistrate (at a formal bail hearing) the discretion to release an accused on bail. The decision is never automatic. The decision-maker must consider whether the interests of justice permit release, and if so, on what conditions and at what amount.
Drinking and driving, where there is no serious injury or death, ordinarily falls within Schedule 1 of the Criminal Procedure Act. That means it is treated as a less serious offence for bail purposes, and police bail at the station, or release on a written warning, is realistically available. Where the facts are more serious, for example where an accident caused injury or loss of life, the schedule and the bail enquiry change, and a formal court hearing becomes more likely.
The factors that influence the bail decision include:
- Whether the accused is likely to stand trial, or whether there is a risk of fleeing the jurisdiction.
- Whether the accused has previous convictions, particularly for drinking and driving or other road traffic offences.
- The seriousness of the alleged conduct, including the blood or breath alcohol reading and whether an accident, injury, or death was involved.
- Whether the accused has fixed ties, such as a stable home, employment, and family responsibilities in the area.
- Whether the investigation will be disrupted by release, for example through interference with witnesses or the destruction of evidence.
These factors are weighed together. A first-time offender with strong community ties and a clean record will usually attract a very different outcome to a repeat offender, or to an accused whose driving caused serious harm.
Release on a Written Warning (J534) and Police Bail
In a substantial number of drinking and driving arrests the accused is not required to pay bail at all. There are two common non-cash routes.
- Written warning to appear (J534). The accused is released after signing a written notice, in the form of a J534, in which they undertake to appear in court on a stated date. No money changes hands. This is common for a first offence where the accused can be reliably identified and has a fixed address.
- Police bail. Where the offence falls within Schedule 1 or 2 of the Criminal Procedure Act, the station commander (or an authorised officer) may fix bail at the police station under section 60(11A). The accused pays the amount, is released, and still has to appear in court on the allocated date.
It is important to understand that paying police bail is not a fine and is not an admission of guilt. It is a security for the accused’s attendance at court. If the accused attends court as required, the bail amount is usually refunded at the end of the matter, subject to the court’s directions.
The Formal Bail Hearing in Court
Where the police do not grant bail, or where the offence is too serious for police bail, the accused must be brought before a court, ordinarily within 48 hours of arrest, for a formal bail hearing under section 60 of the Criminal Procedure Act. At that hearing the magistrate hears argument from the State and from the accused (or their attorney) and then decides whether to release the accused, and on what conditions.
At a formal bail hearing the court may:
- Release the accused on a warning, with no cash payment.
- Release the accused on bail with conditions attached, such as reporting to a police station, surrendering a passport, or not driving.
- Refuse bail, if the interests of justice demand it, in which case the accused remains in custody pending trial.
You can read the bail provisions in full on the Department of Justice and Constitutional Development website, and you can trace the case law on bail on the Southern African Legal Information Institute (SAFLII) database. Both are independent public resources and are not affiliated with any law firm.
What About the “Typical” R1,000 to R5,000 Figure?
Some sources quote a range of roughly R1,000 to R5,000 as a “typical” bail figure for a first drinking and driving offence. It is important to read that figure correctly. It is not a tariff and it is not a legal requirement. It is, at most, an informal observation about what police bail has been set at in some stations for straightforward first offences.
The figure can be much lower (including zero, on a written warning) or substantially higher, depending on the blood alcohol reading, whether there was an accident, whether there are prior convictions, and whether the accused is a flight risk. Treating any rand figure as fixed, before the facts are known, is a mistake and can lead to people being unprepared for the actual bail decision.
The Criminal Law department at Otrebski Attorneys, a 100% women-led Sandton firm led by Director Nastasja Otrebski, does not quote bail figures blindly. The firm assesses each matter on its own facts before advising on a bail position. Otrebski Attorneys holds a Level 4 B-BBEE rating and carries a 5-star Google rating across 12 reviews.
Frequently Asked Questions About Bail for Drinking and Driving
Is there a fixed bail amount for drinking and driving in South Africa?
No. There is no legislation or schedule that fixes a set rand amount for bail on a drinking and driving charge. The offence is created by section 65 of the National Road Traffic Act 93 of 1996, but bail is decided separately under section 60 of the Criminal Procedure Act 51 of 1977, on the facts of each case.
Can you be released without paying bail for a DUI?
Yes. Many first-time drinking and driving accused are released on a written warning to appear in court (a J534), or on police bail set at the station. Release on warning is common where the accused has a fixed address, stable employment, and no previous convictions.
What law governs bail in a drinking and driving matter?
Bail is governed by section 60 of the Criminal Procedure Act 51 of 1977, read with Schedules 1 to 6 of that Act. Drinking and driving without serious injury or death ordinarily falls within Schedule 1, which permits police bail at the station or release on a written warning.
Does paying bail mean I am guilty of drinking and driving?
No. Bail is not a fine and it is not an admission of guilt. It is security for your attendance at court. If you attend court as required, the bail amount is usually refunded at the end of the matter, subject to the court’s directions.
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Disclaimer. This article is general information about South African criminal and road traffic law and is not legal advice. It does not create an attorney-client relationship, and no bail amount should be assumed from anything written here. For guidance on your specific matter, consult a qualified criminal law attorney. Otrebski Attorneys is a 100% women-led, Level 4 B-BBEE law firm based in Sandton, Johannesburg, with a 5-star Google rating across 12 reviews.