Bail is an attempt to ensure the accused’s presence at his trial, while at the same time giving due regard to the principles and policy considerations that underlie the criminal justice system. The granting of bail is in the nature of a contract in terms of which the state commits itself to the accused’s continued interim freedom once the court has authorised his release, while the accused commits himself to stand trial. It is apparent that the contracting parties are the state and the accused, although the discretion to grant bail vests in the court.

Underlying the concept of bail is the presumption of innocence, whereby every person is presumed to be innocent until he or she is found guilty. Although not intended as a punitive measure, pre-trial incarceration nevertheless carries a penal element in that it deprives a prima facie innocent person of his freedom.

In most bail applications the onus rests on the state to persuade the court that the accused should not be released on bail. However, in Schedule 5 and 6 bail applications, which includes offences such as murder and premeditated murder the onus rests on the accused to persuade the court. In terms of schedule 5 bail applications, the accused needs to satisfy the court that interests of justice permit his or her release on bail, where in terms of Schedule 6 bail applications the accused needs to show that there are exceptional circumstances that permit the accused’s release on bail.

Essentially bail applications are governed by section 60 of the Criminal Procedure Act 51 of 1977 (“The Act”). Section 60 of the Act provides a number of factors to be taken into account by the court in either granting or refusing bail.

One of the important factors the court needs to consider is whether an accused person is a flight risk. In determining whether an accused is a flight risk, an accused needs to show that he or she has assets situated within the jurisdiction of the court, he or she has emotional, family, community or occupational ties within the court’s jurisdiction, and that the accused does not possess any travel documents or alternatively handed in the travel documents to the investigating officer.

A second factor to be taken into account is whether the accused will interfere with potential state witnesses. First, the court will consider whether there has been actual interference with state witnesses by the accused, secondly the court will consider interference with state witnesses by the accused in previous cases, and lastly in the absence of actual interference in the pending case or previous case the court will look at the fears of interference.

A third factor to be taken into account is whether the accused will commit further crimes whilst on bail. In terms of this factor, the court will look at the disposition of violence on the part of the accused, as it is evident from his or her past conduct and a threat of violence which the accused may have made to any person.

Lastly, personal factors of the accused may play a crucial role in the court granting bail. Personal factors of the accused include factors such as the fact that the accused is in poor health, the advanced age of the accused, the fact that the accused is particularly young, the fact that the accused has dependants to support, and the financial position of the accused.

In conclusion, there are various factors that are taken into account by our courts when deciding whether to grant or refuse bail. Most importantly, the presumption of innocence plays an imperative role in formal bail applications.