Being arrested does not automatically mean an accused person must stay in custody until trial. In South Africa, the right to apply for bail is protected by the Constitution, but the strength of that right depends on the seriousness of the charge and the personal circumstances of the accused. Schedule 5 of the Criminal Procedure Act 51 of 1977 deals with a category of more serious offences where bail is far from automatic.
A Schedule 5 bail application is governed by section 60(10) of the Act, which reverses the ordinary burden of proof. Instead of the State having to show why the accused should remain in custody, the accused must satisfy the court that the interests of justice permit release. This reverse onus only applies where the accused has a relevant previous conviction, or was already on bail or under sentence when the new offence was allegedly committed.
What Is a Schedule 5 Offence?
Schedule 5 of the Criminal Procedure Act 51 of 1977 lists offences that Parliament regards as serious enough to justify a stricter bail regime. The list is not a single charge but a defined category, and it has been expanded several times by amendment, most notably through the Criminal Law Amendment Act 105 of 1997 and later the Criminal Matters Amendment Act.
Offences that appear on Schedule 5 include, among others:
- Murder, where it is alleged that the accused had previously been convicted of murder, or where the murder was planned or premeditated.
- Rape, including where the complainant is vulnerable or where the accused knew he was HIV positive.
- Armed robbery, robbery with aggravating circumstances, and housebreaking with intent to commit an offence where aggravating circumstances are present.
- Certain corruption, fraud, forgery or uttering offences involving large sums or committed against the State.
- Theft of motor vehicles and certain drug-related offences under the Drugs and Drug Trafficking Act 140 of 1992.
- Contraventions of the Explosives Act and offences involving the unlawful possession of firearms or ammunition.
The precise contents of the Schedule must always be checked against the current Act, because courts take a strict approach to classification. An offence that sounds serious in ordinary language may not fall within Schedule 5, while a charge that looks procedural may, on closer reading, be listed.
The Reverse Onus Under Section 60(10)
The defining feature of a Schedule 5 bail application is the reverse onus created by section 60(10) of the Act. In an ordinary bail matter the State must produce evidence showing why release would not be in the interests of justice. Once Schedule 5 is engaged, that burden shifts.
The section provides that, where an accused is charged with an offence referred to in Part II or Part III of Schedule 5, and the accused has previously been convicted of a similar or related offence, or was on bail, or was under sentence at the time the alleged offence was committed, the court shall not order release unless the accused adduces evidence which satisfies the court that the interests of justice permit release. This is a heavy evidential burden and is the reason legal representation is so important.
Crucially, where the State is ready to proceed with the trial within a reasonable time and the accused fails to discharge the reverse onus, the court must refuse bail. The Constitutional Court has repeatedly confirmed that this provision is not a denial of the right to bail; it is a regulated procedure that balances personal liberty against the safety of the public and the integrity of the justice process.
When the Reverse Onus Applies
The reverse onus does not apply to every person charged with a Schedule 5 offence. Section 60(10) is triggered only where one of the following jurisdictional facts is present:
- The accused has a previous conviction for a Schedule 5 or Schedule 6 offence, or for an offence similar to the one now charged.
- The accused was on bail at the time the alleged offence was committed.
- The accused was under sentence, for example serving a sentence of imprisonment or subject to a correctional supervision order.
If none of these circumstances exists, the charge is still treated as serious but the ordinary burden of proof applies, and the State must show why the accused should not be released. Correctly characterising the application at the outset is one of the most important tasks for a defence attorney, because it determines who must lead evidence first.
The Interests of Justice Test
Whether the accused discharges the reverse onus or the State bears the ordinary burden, the court applies the same interests of justice test set out in section 60(4). The interests of justice do not permit release where one or more of the following grounds is established:
- There is a likelihood that the accused will evade trial if released.
- There is a likelihood that the accused will interfere with witnesses, conceal or destroy evidence, or undermine the administration of justice.
- There is a likelihood that the accused will commit a further offence while on release.
- There is a likelihood that the accused will endanger a particular person or the wider community.
- The administration of justice will be undermined if the accused is released, for example where public order may be disturbed.
In weighing these factors the court considers the personal circumstances of the accused, the strength of the State’s case, the seriousness of the offence, the relationship between the accused and witnesses, the accused’s ties to the area, and any previous failures to attend court. Each factor must be weighed and balanced; no single factor is automatically decisive.
The Bail Hearing Procedure
A bail application should, as a general rule, be brought as soon as possible after arrest. In practice the accused will first appear in court within 48 hours of arrest, and the question of bail is often postponed to allow the defence to prepare and the State to verify the accused’s personal circumstances and previous convictions.
At the hearing itself the defence usually leads evidence first, because it bears the reverse onus. The accused often testifies from the dock and may call a surety, employer or family member to confirm residential address, employment and community ties. The prosecutor may cross-examine and may produce a statement from the investigating officer setting out the State’s version of the strength of its case.
After evidence is led both sides address the court. The magistrate or judge then weighs the factors under section 60(4) and delivers a ruling. If bail is granted, conditions are usually attached; if it is refused, the accused may apply for a review or appeal of the refusal in appropriate circumstances, or reapply where new facts have arisen.
Conditions That May Be Attached to Bail
Where a court grants Schedule 5 bail it almost always imposes conditions to manage the risks identified during the hearing. Typical conditions include:
- Reporting to a designated police station on specified days.
- Surrendering a passport and being prohibited from applying for a new one.
- Providing a surety or fixed-property guarantee as security.
- Restrictions on contacting witnesses, complainants or co-accused.
- House arrest or a curfew, sometimes electronically monitored.
Breach of a bail condition is itself a criminal offence under section 67 of the Act and may lead to the bail being cancelled and the accused being returned to custody. Conditions should therefore be drafted so that the accused can realistically comply with them.
Why Legal Representation Matters
The reverse onus, the listing analysis, and the procedural sequence of a Schedule 5 hearing make legal representation close to indispensable. A defence attorney who knows the Act can identify whether the reverse onus truly applies, gather the surety and address verification needed to satisfy the court, and present the accused’s personal circumstances in a way that anticipates the grounds of refusal likely to be raised by the State.
The Criminal Law department at Otrebski Attorneys regularly assists accused persons and their families with Schedule 5 bail applications. As a 100% women-led, Level 4 B-BBEE law firm based in Sandton, the firm brings focused, evidence-based advocacy to bail hearings where the stakes are high and the timeline is short.
Frequently Asked Questions
What makes a bail application a Schedule 5 matter?
A matter becomes a Schedule 5 bail application where the accused is charged with an offence listed in Schedule 5 of the Criminal Procedure Act 51 of 1977 and one of the triggers in section 60(10) applies, such as a relevant previous conviction or being on bail at the time of the alleged offence.
Does the accused have to prove why they should be released?
Yes. Under section 60(10) of the Criminal Procedure Act, once Schedule 5 is engaged the burden shifts to the accused to adduce evidence satisfying the court that the interests of justice permit release. This is known as the reverse onus.
What if the accused has no previous conviction?
If the accused has no relevant previous conviction and was not on bail or under sentence at the time of the alleged offence, the reverse onus in section 60(10) does not apply. The ordinary bail procedure takes over and the State bears the burden.
How long does a Schedule 5 bail hearing take?
There is no fixed time frame. The hearing must be brought as soon as is reasonably possible, but where the reverse onus applies the court will often grant the State a short postponement to verify personal circumstances and previous convictions before evidence is led.
Can a refused Schedule 5 bail application be challenged?
Yes. Where bail is refused the accused may appeal or review the refusal in appropriate circumstances, or bring a fresh application on new facts. Legal advice should be obtained quickly, because time limits apply to appeals.
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Disclaimer. This article is provided for general information only and does not constitute legal advice. Bail outcomes depend on the specific facts of each matter, and no attorney can guarantee a particular result. You should consult a qualified legal practitioner about your circumstances before acting on anything contained here.