Formal Bail Applications
It can happen to anyone. An incident occurs which subsequently leads to your arrest. After being formally charged, an Accused may apply for bail. Depending on the type of offence the Accused is charged with, and the provisions of the Criminal Procedure Act 51 of 1977 (hereafter referred to as the CPA), an Accused may apply for bail from either the Investigating Officer, Public Prosecutor, or the Presiding Officer at Court. Within this article I shall attempt to briefly explain the concepts and procedures involved in applying for bail prior to, and on first appearance.
Apart from resorting to the intricate network of sections and subsections within the Criminal Procedure Act 51 of 1977 as amended (CPA) in relation to the application for bail, the investigating officer and the arresting officers play a crucial role as to whether bail is either opposed, or unopposed by the Prosecution (or State). Many factors are taken into account when examining the provisions of Section 60 (4) of the CPA. Some of these include the severity of the offence, the strength of the State’s Case, the likelihood of the Accused evading his or her trial, and the likelihood of the Accused undermining public peace and security or disturbing the public interest should he or she be released. These provisions are numerous, clear and often self – explanatory. The provisions are applied on a case by case basis as each case is decided on its own unique factual matrix.
Nature of a Bail Application
The Onus / Burden of proof in each bail application is determined by examining the offence the Accused is charged with against the Schedules and provisions of the CPA. In terms of Section 60(1) it is clearly stated that an Accused may be released on bail if the Court is satisfied that the interests of justice permit his or her release. In the decided case of S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1  ZACC 8; 1999 (4) SA 623 (CC), (Dlamini’s Case) the Court, in highlighting the two of the three points made upon examining the provisions of Section 60 stated that:
“  Mere perusal of the compendium in chapter 9 highlights a number of basic propositions about our law of bail that are relevant in the cases currently under scrutiny. The first and most obvious observation is that the chapter creates a complex and interlocking mechanism that is clearly designed to govern the whole procedure whereby an arrested person may be conditionally released from custody, prescribing the components of that mechanism in minute and sequential detail.17 Manifestly the lawgiver, both in its initial formulation of the chapter and more pertinently by means of the extensive supplementation recently added to s 60,18 intended to provide a comprehensive - if not exhaustive - set of prescripts governing the whole procedural terrain of bail”
.  The second general observation to be made about chapter 9 arising from the overview is that the grant or refusal of bail is unmistakably a judicial function.19 In that respect it ties up with chapters 4 and 5 of the CPA, dealing respectively with the various methods of securing the attendance of an accused person in court and with the most invasive of those methods, namely arrest. The underlying policy is plain. Although societal interests may demand that persons suspected of having committed crimes forfeit their personal freedom pending the determination of their guilt, such deprivation is subject to judicial supervision and control. Moreover, in exercising such oversight in regard to bail the court is expressly not to act as a passive umpire. If neither side raises the question of bail, the court must do so.20 If the parties do not of their own accord adduce evidence or otherwise produce data regarded by the court to be essential, it must itself take the initiative.21 Even where the prosecution concedes bail, the court must still make up its own mind.22 In principle, that policy of the CPA, and the consequential provisions mentioned, are in complete harmony with the Constitution. The potential problems lie elsewhere.”
These paragraphs are quoted above as it clearly explains the role of the Presiding Officer in the bail application as well as the manner in which the principles in relation to bail are to be applied. Dlamini’s Case further examines the principles relating to “interests of justice” and “exceptional circumstances” in relation to S60(11).
It must be noted further that a bail application is a two-stage inquiry. Namely on the merits of the application itself, and further into the financial ability of an Accused to pay a sum of money as a condition of being released on bail. Section 60 (2B) of the C.P.A clearly explains this.
Burden of Proof
In terms of Section 59 of the CPA, it is stated that a Police Official of or above the rank of a non-commissioned officer, upon consultation with the investigating officer of the case, may release the Accused on bail prior to the Accused’s’ first appearance at Court, provided that the offence the Accused is charged with does not fall under Part II or III of Schedule 2 of the CPA. In layman’s terms this is usually referred to as ‘Police bail’.
In terms of Section 60 (11) (a) and (b), should the offence the Accused is charged with resort under either Schedule 6, or Schedule 5 and not the former, the burden of proof in a bail application rests on the Accused to satisfy the Court that: in a Schedule 5 offence, that the interests of justice permit his or her release on bail, or in a Schedule 6 offence, that exceptional circumstances exist that in the interests of justice permit his or her release on bail.
It is submitted therefore that in terms of Section 60 (1), should the offence not fall under the schedules listed in Section 60 (11), the burden of proof will rest on the prosecution to satisfy the Court that the interests of justice do not permit the Accused’s release on bail- should bail be opposed.
The formal bail application that is brought before Court is unique. Evidence in support of such an application may be presented in a number of ways. It is submitted that where the offence resorts under schedule 5 or 6 as per Section 60 (11) of the CPA, great care must be taken in the manner in which evidence is led. In the case of The State v Mabena  SCA 132 (RSA) the Court stated the following on the procedure in relation to formal bail applications at Court:
“  That legislative scheme for the grant of bail, whether generally or in relation to Schedule 6 offences, necessarily requires a court to determine what the circumstances are in the particular case and then to evaluate them against the standard provided for in the Act. The form that such an enquiry and evaluation should take is not prescribed by the Act but a court ought not to require instruction on the essential form of a judicially-conducted enquiry. It requires at least that the interested parties – the prosecution and the accused – are given an adequate opportunity to be heard on the issue. For although a bail enquiry is less formal than a trial it remains a formal court procedure that is essentially adversarial in nature.13 A court is afforded greater inquisitorial powers in such an enquiry, but those powers are afforded so as to ensure that all material factors are brought to account, even when they are not presented by the parties, and not to enable a court to disregard them.14 And while a judicial officer is entitled to invite an application for bail, and in some cases is even obliged to do so,15 that does not make him or her a protagonist. A bail enquiry, in other words, is an ordinary judicial process, adapted as far as needs be to take account of its peculiarities, that is to be conducted impartially and judicially and in accordance with the relevant statutory prescripts.”
This case concerned a schedule 6 offence, whereby bail was granted without a proper enquiry being held as the state was not given the opportunity to lead evidence. The Court held that in the absence of the enquiry that is required by law the judge had no legal authority to grant bail. All relevant factors pertinent to the enquiry must be placed before the Court without jeopardising the defence of the Accused at trial stage. The record of the bail proceedings is admissible against the Accused at trial. This means that in serious offences the Accused runs the risk of disclosing too much before the Court- despite the fact that matter has not been fully investigated- for the purposes of obtaining bail. This could potentially prejudice the Accused at trial.
Duty to Disclose
Amongst the numerous provisions within the CPA pertaining to bail, Section 60 (11B), is the most important to note. When applying for bail an Accused person is obliged in terms of this section to disclose his or her previous convictions and all other pending criminal matters against them. Failing to do so is an offence punishable with a fine or 2 years’ imprisonment. This provision must not be confused with Sentencing, as at this stage the onus shifts onto the State to prove the Accused’s previous convictions. The Accused may then in turn either admit or dispute those previous convictions.
Note further that in terms of Section 60 (11B)(c) and (d), the Court must advise the Accused that the bail proceedings are being recorded and that anything placed on record by the Accused should he choose to give evidence under oath is admissible at trial and may be used against him. Further, the Accused must be informed that should it be found that he or she has given false evidence, this is an offence punishable by a fine or up to 2 years’ imprisonment.
Perhaps the last pertinent point regarding formal bail applications is that the defence is not entitled to the contents of the police docket prior to the matter being fully investigated. This means usually that the defence is not entitled to the contents of the docket at the time of the bail application. Section 60 (14) is abundantly clear on this point. In the leading case of Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94)  ZACC 12; 1995 (12) BCLR 1593; 1996 (1) SA 725 (29 November 1995), the issues relating to the police docket and at which point the defence is entitled to them is extensively explored. This issue is further examined with specific reference to the aforementioned case in Dlamini’s case (supra).
Formal bail applications are unique in their procedure. Great care must be taken in the presentation of evidence in the application bearing in mind the fundamental principles highlighted above. Reading the case law mentioned above should provide a clear understanding on the provisions related to bail in the CPA and the dangers associated with the manner in which the application is presented.