When a loved one is arrested, life can feel like it is spinning out of control. One of the first questions families should ask is whether they can get them out on bail? Bail matters because it may mean your loved one does not have to sit in a holding cell or remand prison while waiting for trial. It can protect their well-being, allow them to help with their defence, maintain family ties, and reduce the emotional and financial toll on everyone involved. But it is not always simple. In this article we will discuss the guide to getting bail in South Africa, what to expect, what to do, and how to protect the rights of someone arrested.

Types of Bail

There are three types of bail, which relate to the kind of crime committed.

1. Police Bail: Section 59 of the Criminal Procedure Act (CPA) allows a police officer of or above the rank of non-commissioned officer, in consultation with the investigating officer, to release an arrested person on bail before their first court appearance. Police bail is available for any offence other than those listed in Part II or Part III of Schedule 2 of the CPA. Excluded offences include treason, murder, rape, robbery, assault involving grievous bodily harm, arson, and theft or fraud where the value involved exceeds R2,500. If police bail is not granted, the accused must be brought before a court within 48 hours of arrest, as required by section 50 of the CPA and section 35(1)(d) of the Constitution.
2. Prosecutor Bail: Under section 59A of the CPA, a Director of Public Prosecutions (DPP), or a prosecutor authorised in writing by the DPP, may — in consultation with the investigating officer — authorise the release of an accused on bail in respect of an offence listed in Schedule 7. Schedule 7 offences include public violence, culpable homicide, certain assault offences, theft or fraud where the value involved exceeds the statutory threshold, and certain drug offences. This route is typically used when police bail under section 59 is not available. If neither police bail nor prosecutor bail is granted, the accused must be brought before a court within 48 hours of arrest.
3. Court Bail: When both police bail and prosecutor bail are not available or denied, or when a more serious offence is alleged, the accused must apply to a court for bail. This is typically done at the first court appearance but may be made at any time during proceedings. Section 60 of the CPA governs the court’s bail decision. Any prior convictions or ongoing legal matters must be disclosed. The prosecutor has the right to oppose bail, and the court will decide based on the presented evidence and the interests of justice.

A Step-by-Step Guide for Bail

In the unfortunate event that a family member is arrested, here is a step-by-step guide on what you can expect, what you can do, how to prepare, and how to help.

1. When someone is arrested, either with or without a warrant, they must immediately be informed of the reason for their arrest, their rights, such as their right to remain silent and their right to legal representation. Thereafter, the police must bring them before a court within 48 hours of their arrest.You must make sure that you know the details surrounding the arrest, such as the location of arrest, the police station they are being held at, the time of arrest, and charges brought against them. It is essential that a lawyer is contacted immediately to ensure that the accused’s rights are protected, and the correct procedure is followed.
2. The accused can then apply for either police bail and/or prosecutor bail while they are still being held at the police station. However, if neither of these are available or are denied, then a court bail application must be done as explained above. According to the Department of Justice, the accused must “convince the court that it is not only in the interest of justice, but there are exceptional circumstances that exist to assist him to qualify to be released as such.” Therefore, not all applications for court bail are approved.
3. If bail is granted, then there will be restrictions placed on the person released from custody* before their trial, designed to ensure they attend court, do not endanger the public or witnesses, and do not commit further crimes. These are known as conditions of bail. Common bail conditions include the accused making regular reports at a police station, restricted access to witnesses and/or victims, and payment of a monetary amount. Ultimately, it is up to the discretion of the court to determine the conditions when granting bail. Failure to comply with any of the conditions of bail can lead to bail being cancelled, a warrant for your arrest, and being remanded into custody* for the duration of your trial.
4. Once any of the three bail applications are granted, police, prosecutor, or court, and the bail conditions, such as payment of a monetary amount, then the accused will be released from custody. However, the accused may still be bound by certain bail conditions, such as regular report at a police station. The accused will also be required to attend court for the hearing on the dates that are provided to them once released on bail.

Costs and Timelines – What to Expect

It goes without saying that the granting of bail takes time and money. Families should know what to expect when a loved one is arrested and a bail application is sought.

When determining the bail amount, several factors are taken into account. The seriousness of the offense is a primary consideration, alongside what the interests of justice allow. Factors such as the risk of the accused committing further offenses while on bail, their flight risk, the potential to intimidate witnesses, and the possibility of jeopardising the trial will all be assessed. Bail amounts can range from hundreds of rand upwards, depending on the severity of the offense. It is up to the court’s discretion to determine the amount of granting bail. Families should also understand whether bail money is refundable, because the bail amount is separate from attorney fees and can be forfeited if bail conditions are breached.

Time is often the most stressful part of a bail application. Our law requires that anyone arrested must be brought before a court within 48 hours of their arrest, excluding weekends and public holidays, if they have not already been released. This is guaranteed under section 50 of the CPA and section 35 of the Constitution. If the arrest happens late on a Friday, for example, the first appearance may only take place on the following Monday. At that first appearance, bail can be applied for if police or prosecutor bail has not been granted beforehand.The timelines for bail depend on the seriousness of the offence and the preparedness of both sides. In less serious matters, police bail can be granted within hours at the station. Where court bail is required, a magistrate may hear the application on the first appearance. However, it is not unusual for bail hearings to be postponed for various reasons.

What Happens if Bail is Denied

Even when a family does everything possible, bail can still be denied and it is not a universal right. The ultimate factor is for the court to consider whether granting bail will be in the interest of justice. The denial of bail must not be seen as a punishment, but rather a protective measure by the courts and police. Certain crimes and certain circumstances may cause a judge to deny a bail application. Bail may be denied when there is a reasonable belief that the accused will endanger the safety of the public or any particular person or will commit a schedule 1 offence.

Similarly, bail may be denied if there is reasonable doubt that the accused, if released on bail, will:

1. Attempt to evade trial;
2. Attempt to influence or intimidate witnesses or conceal/destroy evidence;
3. Undermine or jeopardise the objectives or the proper functioning of the criminal justice system; and
4. In exceptional circumstances there is the reasonable belief that the accused will disturb the public order or undermine the public peace or security.

What We Can Do For You

If you’re reading this because someone you love has been arrested, know that you do not have to face this alone. Bail matters, and timing matters. The sooner you act, the better your chances of securing release or challenging a denial.

We are ready to stand with you. Whether you need urgent advice about a bail hearing, help gathering your documents, or someone to argue your case in court, we will give you honest guidance, compassionate support, and fierce advice.

Contact us now for assistance with bail and criminal matters.

Related bail guides

For more specific situations, see our guides on what to do if someone has been arrested, after-hours bail, drug possession bail, bail violations and revocation, bail review and appeal options, High Court bail appeals, juvenile bail, foreign national bail and bail with surety.