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Bail Lawyer Cape Town
Admitted Attorney of the High Court of South Africa
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)

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    Arrested and accused of a crime? What are your rights?

    Our Constitution ensures criminal proceedings are fair and unprejudiced

    You’ve made a mistake. Now you’re in trouble. What happens following arrest? What are the rights of the accused in South African law? And how do you ensure your rights are upheld?

    In the legal framework of South Africa, Section 35 of the Constitution serves as a fundamental safeguard for the rights of individuals who have been arrested, detained, or accused of criminal offences. This pivotal section addresses the rights of individuals from the moment of arrest throughout their criminal trial, ensuring fairness and protection under the law.

    Rights of the accused

    If you are accused of a crime, you have certain essential rights that guarantee you a fair trial, including:

    • The presumption of innocence until proven guilty
    • The right to be informed of the charges against you
    • The right to legal representation, either through your own lawyer or one provided by the state if you cannot afford it
    • The right to adequate time to prepare your defence
    • The right to a public trial
    • The right to avoid self-incrimination
    • The right to call and challenge witnesses
    • The right to trial proceedings in a language you understand, or with the assistance of an interpreter if needed
    • The right to protection from retroactive criminalisation – in other words, you cannot be punished for an act that was not criminal when you committed it (i.e., the law has since changed)
    • The right to timely sentencing if convicted
    • The right to appeal both conviction and sentence

    Criminal Procedure Act

    These rights are enshrined in the Criminal Procedure Act. The Act is a fundamental piece of legislation governing criminal proceedings in South Africa which ensures they are conducted in a fair and transparent manner. It sets out the procedures to be followed in the investigation, arrest, prosecution, and trial of criminal cases in the country. The Act plays a critical role in safeguarding the rights of accused persons and seeing that justice is served. 

    It describes the rules governing the circumstances under which you may be arrested, the requirements for obtaining a warrant for arrest, and the procedures for the detention of suspects in custody. The Act also specifies your rights as a suspect, including the right to legal representation and the right to remain silent.

    Understanding arrest and detention

    If you are arrested and detained by the South African Police Service, you should be brought before a court of law within 48 hours, excluding weekends. During the initial court appearance, the charges are presented, and you can apply for bail. However, bail is not guaranteed and may be denied if the court deems you pose a risk to the public or you are a flight risk.

    Unlawful arrest and detention

    In cases of unlawful arrest, detention, or infringement of rights by law enforcement, you can pursue a civil claim for damages. This can include compensation for lost earnings, medical expenses, loss of support, and general damages for any suffering you endured during your detention.

    In essence, Section 35 of the South African Constitution and the Criminal Procedure Act establish critical protections to uphold the rights of accused individuals, ensuring fair treatment and due process within the country’s legal system.

    Bail application process 

    The Constitution grants you the right to apply for bail if you have been arrested, irrespective of the type of crime you are charged with. 

    There are three types of bail application: 

    • Police bail – in terms of section 59 of the Criminal Procedure Act, you can apply for bail at the police station within 48 hours of your arrest if the offence does not fall under Part II or Part III of the Schedule 2 offences. In other words, you can apply for bail if you have committed an offence which is not considered serious, such as theft under R2,500, common assault, exceeding the speed limit or possession of cannabis less than 115 grams. 
    • Prosecutor bail – the Director of Public Prosecution or a prosecutor authorised by the DPP may sanction your release on bail before your first court appearance if you are charged with a schedule 7 offence. These offences are slightly more serious, for example, culpable homicide, assault, grievous bodily harm, robbery, theft, possession of drugs, and fraud where the amount involved does not exceed R20,000. 
    • Bail applications in court – if you are charged with a schedule 5 or 6 offence, a formal bail application will need to be made in court. It may be made by affidavit or by calling you or a witness to the stand. You will need to inform the court of any pending cases or previous convictions at the bail hearing and the prosecutor may state why bail should not be granted. The court will take various factors into account before making a decision and may postpone the application in order to make a decision. The postponement should not be longer than seven days.

    Factors the court takes into consideration when considering bail: 

    To deny you bail, the court will need to prove, on a balance of probabilities, that: 

    • Your release will endanger your own safety, the safety of the public, or any other particular person 
    • You will avoid your trial 
    • You will attempt to influence or intimate witnesses or hide or destroy evidence
    • You will undermine or endanger the functioning of the justice system
    • You will disturb public order or undermine public peace and security 

    Where the magistrate holds any of the above to be a risk, bail will be refused. 

    Determining the amount of bail payable 

    The amount is set at a rate that will secure your return to court to finalise the matter, because bail is refundable, even if you are found guilty. If you cannot afford bail, you can argue for a reduction. Alternatively, you will be held in custody until your trial is finalised, called “remand detention” (or “being held on remand”). 

    Anything you say during the bail application can be used against you during the trial. You should avoid discussing the details of your case during the bail application and you are strongly advised to enlist the services of a skilled bail attorney to secure bail for you. 

    Let our law firm help you

    Cape Town attorneys SD Law & Associates Inc. are experienced criminal attorneys and bail lawyers. If you have been charged with an offence, or have any questions about any aspect of criminal law, call Simon on 086 099 5146 or email

    Further reading:

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    Arrested? Not South African?

    A guide for expats arrested in South Africa

    Arrest is one of the scariest things that can happen to anyone. If you are not a South African citizen or permanent resident, the experience can be even more terrifying. Will you be deported? Will you be deprived of your passport? What are your rights as an expatriate if you find yourself under arrest? In fact, the legal process for a non-South African closely mirrors that for South African citizens. This article provides foreign nationals with vital information regarding legal rights, the legal process, and how to navigate the situation in the event of expatriate arrest.

    Understand your rights

    Section 35 of the South African Constitution grants certain rights to individuals upon arrest, whether they are citizens or expatriates. These include the right to be informed of the charges against you in a language you understand, the right to remain silent, and the right to legal representation. These rights ensure fair treatment within the legal system.

    Court appearance

    If you are arrested and detained, you must be presented before a court within 48 hours of your arrest. However, if you are arrested on a Friday or over the weekend, you may have to wait until the next working day. You are likely to remain in detention until Monday, because the courts do not sit at the weekend. 


    You may be offered the opportunity to be released on bail. Bail is the payment of a fee (security) in exchange for your release until trial. The fee is refundable after your trial, even if you are found guilty. The amount of bail varies according to the seriousness of the offence and other factors, and is set by the magistrate. It is not merely a token amount, as it is designed to be a deterrent to flight. For this reason, not all expats are able to raise bail. Bail is not an automatic right. Less serious offences (e.g., theft under R2500, common assault, or exceeding the speed limit) qualify for police bail, which is normally granted. You can apply for police bail at the police station when you are arrested, and must apply within 48 hours of arrest. You may be denied bail if the offence is serious, e.g., grievous bodily harm or robbery, if you pose a danger to the public, or are a flight risk. In those instances, you will be detained in custody until your trial date.

    Common causes of arrest for expats

    Everyone in South Africa, regardless of their nationality, has an obligation to obey the laws of the land. Breaking any law may be grounds for arrest. However, foreign nationals may be arrested for reasons that don’t apply to citizens or permanent residents. Expatriates often face charges related to visa and permit issues such as:

    • Not being in possession of a visa or permit
    • Being in possession of an expired visa or permit
    • Being in possession of a visa or permit which is suspected to be forged or fake
    • Contravening the conditions of a visa or permit by studying, working or running a business

    Section 60 of the South African Criminal Procedure Act governs the consideration of bail in criminal cases, including the severity of the offence, community ties, and flight risk. Although there’s a misconception that foreign nationals are always flight risks, South African courts have affirmed that the burden of proof in bail applications is the same for both citizens and expatriates.

    Seek legal and consular assistance

    Engaging a seasoned attorney promptly is crucial. An attorney will explain the charges, provide legal advice, and ensure the protection of your rights throughout the process. Keep in mind that the specific details of your arrest, the charges, and other factors can significantly influence your situation. Consult with a legal professional such as SD Law who can provide tailored advice for your case.

    You should also reach out to your embassy, High Commission, or consulate in South Africa for assistance and support. Diplomatic officials can offer valuable information and assistance in challenging times.

    If you are arrested…

    Facing legal issues as an expatriate in South Africa can be daunting. We are dedicated to offering the legal assistance you need, ensuring a thorough understanding of the process, and advocating for your rights within the South African legal framework. Get in touch using this contact form. We will require some basic information and any relevant documents concerning your case for a comprehensive assessment. Or give us a call on 076 116 0623. If you don’t need us now, save the number in your phone just in case.

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    Bail application: Are there exceptional circumstances?

    Reprinted from De Rebus, by Andrew Jeffrey Swarts – 2023-07-01

    When a person has been arrested with or without a warrant in terms of s 50(1)(a) of the Criminal Procedure Act 51 of 1977, they shall be informed of their right to apply and be released on bail or be informed their further detention in terms of s 50(1)(b) and s 50(6)(a) respectively. In the event that somebody has been arrested and the case brought against them is of a more serious nature, they might fall under s 60(11)(a) of the Criminal Procedures Act, which provides that: ‘Notwithstanding any provision of this Act, where an accused is charged with an offence –

    (a) referred to in schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permits his or her release.’

    How the courts have dealt with the ‘exceptional circumstances’ requirement

    In S v Jonas and Others 1998 (2) SACR 677 (SE) it was held that the term ‘exceptional circumstances’ in a schedule 6 bail application are not defined. No direct causes were attached to what constitutes ‘exceptional circumstances’. In Mvambi v S (GJ) (unreported case no A113/2021, 4-2-2022) (Malangeni AJ) at paras 19, 20 and 22, the court held that the burden is on the appellant in a bail application to provide ‘that exceptional circumstances exist which in the interest of justice permit his [or her] release’. The court held that normal or ordinary circumstances do not amount to exceptional circumstances. The court in Mvambi referred to Jonas that an urgent serious medical condition and a cast-iron alibi can be considered exceptional circumstances. In Nhlapo v S (GP) (unreported case no A07/2023, 17-2-2023) (Ally AJ) at para 5, the court referred to exceptional circumstances as, ‘more than what can be described as the run-of-the-mill bail applications.’ The court in Nhlapo held that the appellant ‘must present cogent evidence’ that will be able to ‘stand up to scrutiny’ in order to convince the court on a ‘preponderance of probabilities’ that the appellant is a candidate for bail.

    Result of not challenging the exceptional circumstances advanced by the appellant

    In Fourie v S (GP) (unreported case no A107/2020, 8-6-2020) (Rabie J), the appellant was charged with nine counts, among others – robbery with aggravating circumstances; attempted murder; and malicious injury to property to name but a few. The charges against the appellant fell under s 60(11)(a). The burden was on the appellant to advance exceptional circumstances in order to discharge the burden placed on him in terms s 60(11)(a). The charges emanated from a cash in transit heist where the armoured vehicle was physically forced off the road. Shots were fired at the armoured vehicle while being at the side of the road. The occupants inside the armoured vehicle were forced to open it under threat that the robbers would use explosives to gain entry if they did not comply. It was submitted by the defence that the matter should be dealt with as a matter falling under schedule 5. They argued that the appellant was not physically involved in the robbery. The court rejected the defence’s contention and stated that if the allegations are true, the appellant acted in concert with the perpetrators and his intention was to the accomplish the desired outcome and as such he should face the same consequences. The court proceeded with the bail application as a schedule 6 offence. It was submitted by the state that the appellant was an employee of SBV as the Head of Logistics. The state alleged that the appellant manipulated the route taken by the occupants of the vehicle the day of the robbery in order to execute the robbery. It was found that the appellant did not have the mandate to change routes. The appellant submitted that he would stand his trial and that he had no relatives abroad. The state did not place anything before court in opposing the application. The state did not do anything to rebut the appellant’s denial that he did not commit or was involved in this crime. The court held that: ‘It would appear that the state had adopted this line of approach on the assumption that the appellant had all to do in order to succeed with his application for bail.’ The court in this matter found in favour of the appellant after proving exceptional circumstances, the court found that the version of the appellant stood unchallenged by the state.

    When is the state required to challenge and rebut the exceptional circumstances advanced by the defence?

    In Maponyane v S (NWM) (unreported case no CAB 07/2022, 2-9-2022) (Petersen J), the accused were charged with attempted murder, kidnapping, robbery, pointing of firearm, possession of a firearm and possession of ammunition. The court at para 8 concluded that the appellant relied predominantly on his personal circumstances and that he believed the state’s case was weak. In his affidavit the appellant stating that: ‘The learned magistrate erred in failing to attach the necessary weight to the personal circumstances of the appellant.’ The appellant adduced evidence by way of affidavit, that he is a father of three. His continued incarceration makes it difficult to support his children financially. He stated that he is employed at his father’s place of business and that his father is a sick elderly man. His continued incarceration placed a strain on the family business. The investigator in this matter testified that one of the mothers confirmed that she had two children by the appellant, but that she had not received maintenance money for more than a year from the appellant. It was also pointed out that the appellant’s father was in the court the day the bail application was heard and that he was present at every postponement prior to that day. The court dismissed the version of the appellant on the bases that every assertion made by the appellant was rebutted by the state. The court in dismissing the appellant’s application stated that: ‘The appellant against the presumption of innocence regularly finds himself in conflict with the law, being released on bail on very serious charges and being arrested while on bail. That, in itself, undermines the proper functioning of the bail system and contributes to bringing the administration of justice into disrepute in the eyes of society.’

    In S v Mathebula 2010 (1) SACR 55 (SCA) at para 12, the court held that: ‘Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing there is no call on the state to rebut his evidence to that effect.’ The difference in how the state opted to apply itself in the Maponyane case as opposed to the Fourie case is evident in the outcome of both cases. The proactive approach by the investigator in the Maponyane case, by bringing the relevant information to the attention of the court, to place the court in a position to determine that exceptional circumstance did not exist.

    Unintentional consequences of a schedule 6 bail application

    In many schedule 6 offences, one finds that the investigation has been dragged on for too long and the state requests a remand for the investigations to be completed. It is in the defence’s discretion to request that the matter be struck from the roll to ‘give the state ample time to conclude the investigation’. Should the matter be struck from the roll, how do you secure the attendance of the accused before court when the investigation is completed? Does the state opt for a summons? Section 60(11)(a) states that ‘the court shall order that the accused be detained in custody.’ This is a mandatory provision, and the detention of the accused is the subject of this provision, until he is dealt with in terms of the law. The provision indicates that his detention is to be secured first and his detention shall be by way of a court order. This indicates that his detention shall be by way of warrant of arrest. In order to properly understand the provision, the case of S v Hewu and Others 2017 (2) SACR 67 (ECG), might be of assistance. In the Hewu case, the postponements were numerous and because of that the magistrate struck the matter from the roll. The appellant was arrested with a J50 warrant of arrest that same day and was brought before a different magistrate the next day. The matter was struck of the roll for a second time in as many days. On appeal, the judge requested submissions form the offices of the National Director of Public Prosecutions (NDPP) in Port Elizabeth and Grahamstown. The Port Elizabeth offices of the NDPP submitted that s 60(11)(a) ‘makes no distinction between accused persons who appear for the first time’ and those released on bail, there attendance should be secured by warrant of arrest. By issuing a summons, it is contrary to the intention of the provision. The Grahamstown offices of the NDPP submitted that the magistrate should have held a s 342A inquiry in order to determine what caused the delay in the finalisation of the investigations and then should have applied its mind based on the outcome of the inquiry. The court in Hewu stated that each case should be dealt with on its own merits but concluded that in the present case the court should have held a s 342A inquiry in order to ascertain what caused the delays. The court held at para 23 that: ‘Section 60(11) of the Act does not constitute an absolute bar to a court’s refusal to postponement and a decision to strike it from the roll in terms of s 342A(3)(a).’ The court also held that: ‘If it later transpires that the trial can be proceeded with and be completed soon, the re-arrest of the accused could be justified.’ The court in Hewu was willing to accept both submissions made by the different NDPP’s offices, but the method to be followed will be indicative of the case before court.


    In S v Mabena and Another [2007] 2 All SA 137 (SCA) at para 6, the Supreme Court of Appeal confirmed that the ‘potential factors for and against the grant of bail’, listed in the Act, s 60(4), are no less relevant than what they are in a schedule 6 bail application. In almost every bail hearing the appellant recites the provisions of s 60(4) and assert that the state’s case against them is weak. On the former assertion the court in Mathebula at para 15 held that: ‘Parroting the terms of ss (4) of s 60 … does not establish any of those grounds, without the addition of facts that add weight to his ipse dixit.’ On the latter assertion the court in Mathebula at para 12 stated that, ‘he [the appellant] must prove on a balance of probability that he will be acquitted of the charge.’

    Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.

    Save our number just in case

    Cape Town attorneys SD Law & Associates are experts in criminal defence. If you are arrested, contact criminal defence lawyer Simon Dippenaar on 076 116 0623. Save the number in your phone…better safe than sorry.

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    Don’t get locked up during lockdown

    Lockdown has led to high numbers of arrests. Here’s what to do if it happens to you.

    Locked up during lockdown? know your rights

    Locked up during lockdown? Lockdown has brought with it an increased number of arrests and incidents of police brutality. In the first three weeks of level 5 lockdown, more than 100 charges were laid against the police for abuses. Level 4 regulations are unclear and open to interpretation. For example, exercise is permitted but there are to be no “organised groups”. Among the cyclists we know, one interprets “organised group” to mean a club ride or organised event like a race. Another thinks any more than two cyclists constitutes a group. Who is right? No one knows, as our rules don’t define a group by numbers, such as five (Switzerland) or 10 (France).

    So it’s up to the police to decide who is breaking the law and who is not. In this climate of ambiguity, normally law-abiding citizens may find themselves on the wrong side of the law. What should you do if this happens to you and you are arrested?

    Lockdown lock-up – arrestees’ rights

    Everyone arrested has certain rights guaranteed under the Constitution. Whether you feel you have been wrongfully arrested, for example due to a difference of interpretation of an opaque rule, or have been caught red-handed committing a crime, there is certain behaviour incumbent on the police making the arrest. You have the right to:

    • Be informed of your rights as well as the consequences of not remaining silent
    • Remain silent
    • Not be forced to make a confession that could be used against you
    • Be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last)
    • Be charged, or informed of the reason for continued detention, or released at the first court appearance
    • Be released if the interests of justice permit, subject to conditions, e.g. bail
    • Be informed of your right to institute bail proceedings
    • Make a note of how you are treated

    Generally, the South African police force upholds the Constitution and acts within the law. Occasionally it does not. Unfortunately, at present our police are overreaching their authority and you may find your rights are breached. It is worthwhile making a note – mental or written if possible – of the following:

    • The precise events and conversations that occur between the representative of the law and yourself
    • The degree of force used in effecting the arrest
    • Whether a warrant was shown
    • Whether you were informed of your rights on arrest
    • Whether you were allowed to contact a bail attorney

    Most importantly, avoid inflaming the situation. It won’t help your case, no matter how aggrieved you may feel.

    Lockdown lock-up – what to do if you are arrested unlawfully

    Right now, because of the murkiness of the rules, it’s quite possible you will be arrested unlawfully, or feel that you have been. Keep calm and know your rights.

    • First, try to make notes concerning everything that is happening to you. Ask for pen and paper if you don’t have writing materials with you
    • Second, remember that you are innocent until proven guilty and it is the state’s responsibility to prove your guilt
    • Third, contact your lawyer as soon as possible. You have a right to legal representation – have that vital cell number on speed dial for rapid response

    In your written notes, record the following, as far as you are able:

    • Every conversation between you and the officer/s involved
    • Was a warrant shown?
    • Were you advised of your rights?
    • Were you advised about your rights to apply for bail and were you able to contact a bail attorney?
    • If force was used, describe this and try to evaluate whether the force used was excessive

    If you have no writing materials and your request for pen and paper is turned down, do your best to make mental notes of these points and write a full account as soon as you are able.

    Lockdown lock-up – what to do if you’re a victim of police brutality:

    Force has been a hallmark of police activity during lockdown. The United Nations has said that South Africa is abusing the lockdown with gratuitous violence, “…using rubber bullets, tear gas, water bombs and whips, to enforce social distancing, especially in poor neighbourhoods”. This constitutes assault. If you are a victim of this, here are some steps you can take.

    Step one: collect relevant information

    If possible, obtain important information at the scene of the assault, such as:

    • Names of the offending police officers
    • Names and contact details of any witnesses
    • Photographs of all your injuries

    Step two: report the crime

    Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with this.

    Step three: see a doctor

    The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.

    If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

    Step four: document the story 

    Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. Be as specific as possible in detailing the assault and the injuries you sustained.

    Other legal options:

    Laying a charge against an offending police officer at the police station constitutes criminal proceedings. You may also institute a civil claim by opening an action for damages against the offending police officers and the Minister of Safety and Security. You will need to consult with a lawyer in order to begin these proceedings. Contact us for more information.

    You can lodge a complaint with the Independent Complaints Directorate. Please go to

    Contact a good bail lawyer

    Cape Town law firm SD Law & Associates is an expert in criminal defence and bail applications. We are available 24 hours a day / 7 days a week. Contact us on 086 099 5146. Save this number in your phone under “bail lawyer”. In the current climate, you never know when you might need it.

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    Harsh sentence for a minor crime

    We came across an interesting case recently where the punishment most definitely did not fit the crime. A petty criminal received an unduly harsh sentence. Furthermore, there were minor children involved who might have been left without their caregiver if the sentence had been carried out.

    An accused appeared before a magistrates court for the theft of shower gel and a body wash to the value of R160.50. The accused was a primary caregiver of two minor children (11 and 16). The initial magistrate sentenced the accused to three years’ imprisonment. 

    Upon review, the Mpumalanga High Court found that the magistrate had failed to take the best interests of the children into account in ordering such a harsh sentence. 

    Considering the children’s interests does not mean that a primary caregiver cannot or should not be given a harsh sentence as a punishment when it is deserved. However, in imposing such a sentence, the court should first take care of the best interests of the children under the accused’s care. The High Court found that the sentence of three years had failed to take the children’s best interests into account. It was reduced to 18 months, backdated to original date of sentencing.

    Have you been unfairly treated by the courts?

    Cape Town law firm SD Law is a firm of criminal lawyers who specialise in criminal defence and bail applications. We are available 24 hours a day / 7 days a week.

    Our bail attorneys are here to help you, whether you are arrested unlawfully or lawfully. And if you or a loved one has received a sentence for an offence that you feel is unjust or excessive, contact us on 086 099 5146 or email Simon on to discuss your case.


    Posted in Arrest, Arrested Unlawfully, Bail Attorney, Bail Lawyer, Criminal Law, Sentencing | Tagged , , | Comments Off on Harsh sentence for a minor crime