A “regular” bail application is the court-based application brought under section 60 of the Criminal Procedure Act 51 of 1977 when an accused does not qualify for police bail and is not covered by the stricter Schedule 5 or Schedule 6 regime. It is the most common route to release for an accused person who has been arrested and formally charged, and it is heard by a magistrate in the court where the trial will take place.
For ordinary offences, the burden rests on the State. The prosecution must place facts before the court showing that the interests of justice do not permit release. That means a well-drafted application, supported by a clear founding affidavit, can make a real difference to whether the accused spends the weeks before trial in custody or at home under conditions.
This guide sets out what a regular bail application should contain, how the founding affidavit and notice of motion are structured, the section 60 factors the court will weigh, and why this kind of application should be drafted by an attorney rather than assembled in haste in the court corridor.
What Makes a Bail Application “Regular”
South African law recognises several routes to bail. Police bail, provided for in section 59 of the Criminal Procedure Act, is granted by a police official of a specified rank for listed minor offences, usually before the first court appearance. Prosecutor bail, under section 59A, extends this to certain Schedule 1 offences. A regular bail application under section 60 is different: it is made to the court itself once the accused has appeared, and it is heard by a magistrate.
“Regular” simply means that the matter is not a Schedule 5 or Schedule 6 case. Those schedules cover serious offences such as murder, robbery with aggravating circumstances, and planned or premeditated crimes, and they reverse the onus so that the accused must satisfy the court that release is in the interests of justice. In a regular application, the State carries that burden. The accused still leads evidence, but the procedural and evidential load is lighter, which is why the application must be prepared cleanly and placed properly before the court.
Step 1: Confirm That the Matter Is Not Schedule 5 or 6
Before drafting anything, the attorney must establish the exact charge and the schedule that applies. This single step determines who carries the onus and what must be proved. Getting it wrong at the drafting stage can lead the court to apply the wrong test or to require the accused to discharge a burden the law does not actually place on them.
- Obtain the charge sheet or, where it is not yet available, the SAPS docket reference and the investigating officer’s summary of the charge.
- Check the charge against the schedules to the Criminal Procedure Act to confirm whether the matter is ordinary or schedule-based.
- If the State intends to escalate the charge to a Schedule 5 or 6 offence at a later stage, prepare for the possibility of a reverse onus.
Once the schedule is confirmed and the matter is genuinely a regular application, the onus remains on the State to show that the interests of justice do not permit release.
Step 2: Draft a Notice of Motion
The application is brought by way of a notice of motion, in much the same form as other motion proceedings. The notice must identify the parties, the court, the case number, and the relief sought. It tells the court and the prosecutor exactly what the accused is asking for.
- The name of the accused, the case number, and the court in which the application is brought.
- The charge or charges the accused is facing, with a note on the schedule classification.
- The relief sought: release on bail, with or without conditions.
- The date and time at which the application will be moved.
- A list of the annexures and supporting affidavits that accompany the notice.
Step 3: Prepare the Founding Affidavit
The founding affidavit is the heart of a regular bail application. It is the accused’s sworn evidence, and it must address, factually and honestly, every matter the court will consider under section 60. The Constitutional Court in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat (1999) confirmed that section 60 is constitutional, but stressed that the personal liberty of an unconvicted person is a weighty interest that the court must actively protect.
The affidavit should cover, at a minimum, the personal circumstances listed in section 60(8) and (9) of the Criminal Procedure Act, because these are the factors the court is directed to weigh when assessing risk.
- Personal particulars: full name, identity number, age, and residential address.
- Family ties: spouse, children, and dependants, and where they live.
- Employment: the accused’s occupation, employer, length of service, and income.
- Assets and fixed residence, including whether the accused owns or rents property in the area.
- Travel documents: whether the accused holds a passport and whether it is available to be surrendered.
- Previous convictions, if any, and any previous failures to appear or bail breaches.
- Other pending cases or outstanding warrants.
The affidavit should also address the section 60(4) risks head-on: it should explain why the accused is not a flight risk, why they will not interfere with witnesses or evidence, why release will not endanger the public, and why they are unlikely to commit further offences. Dealing with these expressly, rather than leaving them to the State, is what makes a founding affidavit persuasive.
Step 4: Gather Supporting Affidavits and Sureties
A founding affidavit is stronger when it is supported by independent evidence. The court is entitled to consider proposed conditions of bail under section 60(12), and the more concretely those conditions are framed, the easier it is for the magistrate to grant release.
- A sworn affidavit from a proposed surety, confirming willingness to stand surety and disclosing their financial position.
- Proof of employment, such as a recent payslip or a letter from the employer confirming the accused’s position.
- Proof of residence, such as a lease, a rates account, or a utility bill in the accused’s name.
- Confirmation from a family member that the accused has a fixed place to stay and ties to the community.
The Department of Justice and Constitutional Development emphasises that bail decisions are made on the facts placed before the court. A docket that is thin on the day will usually mean release, and an accused’s case that is thin will usually mean the opposite.
Step 5: Serve the Application on the State
Once the notice of motion and founding affidavit are signed, the application must be served on the prosecutor and the investigating officer before the hearing. This gives the State a fair opportunity to prepare its response and to verify, for example, the accused’s address and employment. Proper service also reduces the risk of a postponement on the day.
- Lodge a copy of the notice and founding affidavit with the clerk of the court.
- Serve a copy on the prosecutor assigned to the matter.
- Provide a copy to the investigating officer so that factual issues can be checked.
- Keep proof of service for the court file.
Step 6: Prepare for the Bail Hearing
At the hearing, the court weighs the accused’s evidence against the risks identified in section 60(4). The accused may be cross-examined on the contents of the founding affidavit, so the affidavit must be accurate and internally consistent. The attorney’s role is to lead the evidence clearly, deal with the State’s case on the section 60 factors, and propose conditions that manage any residual risk.
- Address flight risk: a fixed address, employment, family ties, and surrender of travel documents.
- Address interference: an undertaking not to contact the complainant or witnesses, backed by appropriate conditions.
- Address public safety: any relevant context that places the alleged offence in its proper perspective.
- Propose conditions: reporting to a police station, residing at a fixed address, and any other term the court may find useful.
Step 7: The Court’s Decision
After hearing evidence and argument, the court decides whether the interests of justice permit release. In a regular application the State carries the burden, so the accused is entitled to release unless the State has placed facts showing that one of the section 60(4) risks is real and cannot be managed by conditions.
- The court may grant bail, with or without conditions.
- The court may refuse bail, where the State has shown that release would not be in the interests of justice.
- The court may postpone the hearing for the accused to gather further evidence or for the State to verify facts.
Where bail is refused, the accused may appeal the refusal or bring a fresh application if new facts arise. Where bail is granted, the accused must comply strictly with the conditions, because a breach can lead to cancellation of bail and re-arrest.
Why a Bail Application Should Be Drafted by an Attorney
Bail hearings move quickly and turn on detail. An attorney brings three things that are hard to improvise in the court corridor: knowledge of the section 60 test, the discipline of swearing an affidavit that survives cross-examination, and the ability to anticipate the State’s case. The Constitutional Court in S v Dlamini stressed that the personal liberty of an unconvicted person is a weighty interest, and that weight is best protected by evidence that is properly prepared and properly placed before the court.
The South African Legal Information Institute publishes the bail judgments of the High Court and Supreme Court of Appeal, and these decisions consistently show that the line between release and remand often runs through the quality of the founding affidavit.
Frequently Asked Questions
What is a regular bail application in South Africa?
A regular bail application is a court-based application under section 60 of the Criminal Procedure Act 51 of 1977, brought by an accused who does not qualify for police bail and whose matter is not covered by the stricter Schedule 5 or Schedule 6 regime. For ordinary offences the burden rests on the State to show that the interests of justice do not permit release.
Who carries the onus in a regular bail application?
In a regular bail application for an ordinary offence, the State carries the onus and must place facts before the court showing that the interests of justice do not permit release. For Schedule 5 and Schedule 6 offences the position is reversed, and the accused must satisfy the court that release is justified, or in Schedule 6 matters that exceptional circumstances exist.
What should a bail founding affidavit contain?
The founding affidavit should set out the accused’s personal particulars, family ties, employment, fixed residence, travel documents, previous convictions and any prior bail breaches, and should deal directly with the section 60(4) risks: flight, interference with witnesses or evidence, endangering the public, and the likelihood of further offences.
Do I need an attorney to draft a bail application?
It is not legally required, but it is strongly advisable. An attorney knows the section 60 test, can swear an affidavit that survives cross-examination, and can anticipate the State’s case. Bail hearings turn on the quality of the evidence placed before the court, and a properly drafted founding affidavit is often decisive.
Can conditions be attached to bail?
Yes. Under section 60(12) of the Criminal Procedure Act the court may attach conditions to bail, such as reporting to a police station at set times, residing at a fixed address, surrendering a passport, refraining from contacting witnesses, or providing a surety. Proposing suitable conditions in advance often helps the court grant release.
Get help with a bail matter. If you or a family member faces arrest or has already been detained, Otrebski Attorneys’ Criminal Law department in Sandton can draft and move a regular bail application under section 60 of the Criminal Procedure Act. Director Nastasja Otrebski leads a 100% women-led, Level 4 B-BBEE practice with a 5-star Google rating from 12 reviews, based at a single Sandton office.
Call 060 500 3098 or book an appointment with our Criminal Law team.
Disclaimer. This article is general information about drafting a regular bail application in South Africa, not legal advice for a specific case. Bail decisions turn on the particular facts of each matter and on the evidence led at the hearing. For advice on a real bail question, consult a qualified attorney or the Legal Aid South Africa office nearest you.