Bail Lawyer Cape Town
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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

    Arrested Constitution

    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:

    This entry was posted in Arrest, Criminal Law, Detention and tagged , . Bookmark the permalink.

    The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.