When a person is arrested, the Constitution dictates that he or she is entitled to a bail application, irrespective of whether that person is a South African citizen, or whether they are in the country legally.
Whether an arrested person should get bail at a police station or a court is determined by the schedule of the offence the person is alleged to have committed.
In this regard, there are typically 5 schedules which need to be considered, and they are:
Schedule 6; and
For the purposes of bail applications, the merits, meaning whether the accused committed the offence or not, is largely irrelevant. The police services do not have the authority to decide if someone committed an offence, only a court can. However, the court is not entitled to decide if someone is guilty or not without a trial, which can only be held after all the evidence has been obtained, which usually takes several months, - or a guilty plea. This is also usually when an unrepresented person may incriminate him or herself, or even plead guilty, when it isn't necessary, just to get out of custody.
3.1. Police Bail (Schedule 2 & section 59 of the CPA)
The police are entitled to provide bail at a police station for very minor (or petty) offences. If an offence is listed in schedule 2, Part II or III, bail cannot be obtained by a police station without the assistance of a prosecutor, provided that the offence is then listed in schedule 7. This is to say that because driving under the influence and speeding is not listed in Part II or Part III, a police station can give bail for these offences - and because murder is listed, the police cannot give bail for this.
The offences for which the police can set bail are also generally offences that the police can accept an admission of guilt fine (AOG) on, which they are known to suggest. If an admission of guilt is made, you pay a fine, and you are released immediately. This is a very appetizing prospect. The consequence of this however is that it will result in a criminal record, which is often understated at the police station. There are various other legal methods of disposing of a criminal offence, even if guilty, which will not result in a criminal record - and it is for this reason that paying an admission of guilt fine without considering all the circumstances, should not be done.
3.2. Prosecutor Bail (schedule 7 & Section 59A of the CPA)
This bail is granted at a police station by way of a prosecutor. In this bail application the prosecutor will consider the representations of a defense attorney and that of the investigating officer to determine if the accused should be released on bail. If the prosecutor determines that it is not possible, the bail will need to be obtained at court.
3.3. Typical Court Bail Application (Schedule 1)
This type of bail application is the most common bail application. The reason why this is the most common bail application is because the offences are usually quite prevalent.
This bail application is not necessarily without peril, as the prosecution can decide to oppose the application, which will then result in a trial, similar to that of the more difficult Schedule 5 and 6 bail applications.
3.4. Court Bail Application: Interests of Justice (Schedule 5)
This can be a relatively difficult bail application. This type of bail application is typically reserved for instances where the accused is a repeat offender of minor offences (multiple schedule 1 offences), or if the accused has been arrested for more serious offences, such as possession of a stolen vehicle (schedule 5 offences).
In this type of bail application the accused will need to prove that the interests of justice permit his or her release on bail, and that the public or the interests of justice will not be negatively impacted by bail being granted.
3.5. Court Bail Application: Exceptional Circumstances (Schedule 6)
This is the most difficult bail application that can be heard in a court, and is reserved for the most serious offences (schedule 6) or repeat offenders of more serious offences (multiple schedule 5 offences). In this bail application the accused must show that there are exceptional circumstances that permit his release on bail.
The bail applications of Shabir Shake, Oscar Pistorius and the Dros Accused were schedule 6 bail applications, as well as the Boeremag members.
3.6. Miscellaneous bail information
It must be stated that schedule 5 and 6 bail applications will require evidence to be given under oath (by affidavit or verbal testimony), irrespective whether it is opposed or not. The burden of proof is on the accused to prove that he or she must be released on bail. If the prosecution wants to oppose the bail application, they are entitled to request a postponement of up to 7 days, but they will need to lead evidence as to why they are opposing the bail application, which is usually done with the testimony of the investigating officer.
If a bail application is unsuccessful, another bail application can only be made if there are new circumstances that arise, or it can alternatively be appealed.
What is stated during a bail application, especially related to the merits when attacking the state's case, should be done with caution, as any evidence tendered in a bail application can be used at trial, and it will be counter-productive to use information to obtain bail that will later result in a conviction.
3.7. Bail Conclusion
As can be seen above, bail applications can be relatively complex, as the schedules are not drafted in an order which follows or makes particular sense - which is why it is suggested that an attorney must be involved as soon as possible either after arrest, or if an arrest is suspected.