| (a) |
An accused who is in custody in respect of an offence shall, subject to the provisions of section 50(6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit. |
[Section 60(1)(a) substituted by section 9(a) of Act No. 62 of 2000]
| (b) |
Subject to the provisions of section 50(6)(c), the court referring an accused to any other court for trial or sentencing retains jurisdiction relating to the powers, functions and duties in respect of bail in terms of this Act until the accused appears in such other court for the first time. |
[Section 60(1)(b) substituted by section 5(a) of Act No. 34 of 1998]
| (c) |
If the question of the possible release of the accused on bail is not raised by the accused or the prosecutor, the court shall ascertain from the accused whether he or she wishes that question to be considered by the court. |
| (2) |
In bail proceedings the court— |
| (a) |
may postpone any such proceedings as contemplated in section 50(6); |
| (b) |
may, in respect of matters that are not in dispute between the accused and the prosecutor, acquire in an informal manner the information that is needed for its decision or order regarding bail; |
| (c) |
may, in respect of matters that are in dispute between the accused and the prosecutor, require of the prosecutor or the accused, as the case may be, that evidence be adduced; |
| (d) |
shall, where the prosecutor does not oppose bail in respect of matters referred to in subsection (11)(a) and (b), require of the prosecutor to place on record the reasons for not opposing the bail application. |
[Section 60(2) substituted by section 4(b) of Act No. 85 of 1997]
| (2A) |
The court must, before reaching a decision on the bail application, take into consideration any pre-trial services report regarding the desirability of releasing an accused on bail, if such a report is available. |
[Section 60(2A) inserted by section 4 of Act No. 55 of 2003]
(2B)
| (a) |
If the court is satisfied that the interests of justice permit the release of an accused on bail as provided for in subsection (1), and if the payment of a sum of money is to be considered as a condition of bail, the court must hold a separate inquiry into the ability of the accused to pay the sum of money being considered or any other appropriate sum. |
| (b) |
If, after an inquiry referred to in paragraph (a), it is found that the accused is— |
| (i) |
unable to pay any sum of money, the court must consider setting appropriate conditions that do not include an amount of money for the release of the accused on bail or must consider the release of the accused in terms of a guarantee as provided for in subsection (13)(b); or |
| (ii) |
able to pay a sum of money, the court must consider setting conditions for the release of the accused on bail and a sum of money which is appropriate in the circumstances. |
[Section 60(2B) inserted by section 9(a) of Act No. 66 of 2008]
| (3) |
If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision on the bail application, the presiding officer shall order that such information or evidence be placed before the court. |
| (4) |
The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: |
| (a) |
Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; |
[Section 60(4)(a) substituted by section 4(c) of Act No. 85 of 1997]
| (b) |
where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or |
| (c) |
where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or |
| (d) |
where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; |
| (e) |
where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; or |
[Section 60(4)(e) inserted by section 4(d) of Act No. 85 of 1997]
[Section 60(4) substituted by section 9(b) of Act No. 62 of 2000]
| (5) |
In considering whether the ground in subsection (4)(a) has been established, the court may, where applicable, take into account the following factors, namely— |
| (a) |
the degree of violence towards others implicit in the charge against the accused; |
| (b) |
any threat of violence which the accused may have made to any person; |
| (c) |
any resentment the accused is alleged to harbour against any person; |
| (d) |
any disposition to violence on the part of the accused, as is evident from his or her past conduct; |
| (e) |
any disposition of the accused to commit offences referred to in Schedule 1, as is evident from his or her past conduct; |
| (f) |
the prevalence of a particular type of offence; |
| (g) |
any evidence that the accused previously committed an offence referred to in Schedule 1 while released on bail; or |
| (h) |
any other factor which in the opinion of the court should be taken into account. |
| (6) |
In considering whether the ground in subsection (4)(b) has been established, the court may, where applicable, take into account the following factors, namely— |
| (a) |
the emotional, family, community or occupational ties of the accused to the place at which he or she is to be tried; |
| (b) |
the assets held by the accused and where such assets are situated; |
| (c) |
the means, and travel documents held by the accused, which may enable him or her to leave the country; |
| (d) |
the extent, if any, to which the accused can afford to forfeit the amount of bail which may be set; |
| (e) |
the question whether the extradition of the accused could readily be effected should he or she flee across the borders of the Republic in an attempt to evade his or her trial; |
| (f) |
the nature and the gravity of the charge on which the accused is to be tried; |
| (g) |
the strength of the case against the accused and the incentive that he or she may in consequence have to attempt to evade his or her trial; |
| (h) |
the nature and gravity of the punishment which is likely to be imposed should the accused be convicted of the charges against him or her; |
| (i) |
the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions could be breached; or |
| (j) |
any other factor which in the opinion of the court should be taken into account. |
| (7) |
In considering whether the ground in subsection (4)(c) has been established, the court may, where applicable, take into account the following factors, namely— |
| (a) |
the fact that the accused is familiar with the identity of witnesses and with the evidence which they may bring against him or her; |
| (b) |
whether the witnesses have already made statements and agreed to testify; |
| (c) |
whether the investigation against the accused has already been completed; |
| (d) |
the relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated; |
| (e) |
how effective and enforceable bail conditions prohibiting communication between the accused and witnesses are likely to be; |
| (f) |
whether the accused has access to evidentiary material which is to be presented at his or her trial; |
| (g) |
the ease with which evidentiary material could be concealed or destroyed; or |
| (h) |
any other factor which in the opinion of the court should be taken into account. |
| (8) |
In considering whether the ground in subsection (4)(d) has been established, the court may, where applicable, take into account the following factors, namely— |
| (a) |
the fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or during the bail proceedings; |
| (b) |
whether the accused is in custody on another charge or whether the accused is on parole; |
| (c) |
any previous failure on the part of the accused to comply with bail conditions or any indication that he or she will not comply with any bail conditions; or |
| (d) |
any other factor which in the opinion of the court should be taken into account. |
| (8A) |
In considering whether the ground in subsection (4)(e) has been established, the court may, where applicable, take into account the following factors, namely— |
| (a) |
whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed; |
| (b) |
whether the shock or outrage of the community might lead to public disorder if the accused is released; |
| (c) |
whether the safety of the accused might be jeopardized by his or her release; |
| (d) |
whether the sense of peace and security among members of the public will be undermined or jeopardized by the release of the accused; |
| (e) |
whether the release of the accused will undermine or jeopardize the public confidence in the criminal justice system; or |
| (f) |
any other factor which in the opinion of the court should be taken into account. |
[Section 60(8A) inserted by section 4(3) of Act No. 85 of 1997]
| (9) |
In considering the question in subsection (4) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely— |
| (a) |
the period for which the accused has already been in custody since his or her arrest; |
| (b) |
the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; |
| (c) |
the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; |
| (d) |
any financial loss which the accused may suffer owing to his or her detention; |
| (e) |
any impediment to the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; |
| (f) |
the state of health of the accused; or |
| (g) |
any other factor which in the opinion of the court should be taken into account. |
| (10) |
Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the accused against the interests of justice. |
| (11) |
Notwithstanding any provision of this Act, where an accused is charged with an offence referred to— |
| (a) |
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 permit his or her release; |
| (b) |
in Schedule 5, but not 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 the interests of justice permit his or her release. |
[Section 60(11) substituted by section 4(f) of Act No. 85 of 1997]
| (a) |
If the attorney-general intends charging any person with an offence referred to in Schedule 5 or 6 the attorney-general may, irrespective of what charge is noted on the charge sheet, at any time before such person pleads to the charge, issue a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6. |
| (b) |
The written confirmation shall be handed in at the court in question by the prosecutor as soon as possible after the issuing thereof and forms part of the record of that court. |
| (c) |
Whenever the question arises in a bail application or during bail proceedings whether any person is charged or is to be charged with an offence referred to in Schedule 5 or 6, a written confirmation issued by an attorney-general under paragraph (a) shall, upon its mere production at such application or proceedings, be prima facie proof of the charge to be brought against that person. |
[Section 60(11A) inserted by section 4(g) of Act No. 85 of 1997]
| (a) |
In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court whether— |
| (i) |
the accused has previously been convicted of any offence; and |
| (ii) |
there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges. |
| (b) |
Where the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph (a), whether in writing or orally, the accused shall be required by the court to declare whether he or she confirms such information or not. |
| (c) |
The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings. |
| (d) |
An accused who wilfully— |
| (i) |
fails or refuses to comply with the provisions of paragraph (a); or |
| (ii) |
furnishes the court with false information required in terms of paragraph (a), |
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.
[Section 60(11B) inserted by section 4(g) of Act No. 85 of 1997]
| (12) |
The court may make the release of an accused on bail subject to conditions which, in the court’s opinion, are in the interests of justice. |
| (13) |
The court releasing an accused on bail in terms of this section, may order that the accused— |
| (a) |
deposit with the clerk of any magistrate's court or the registrar of any High Court, as the case may be, or with a correctional official at the correctional facility where the accused is in custody or with a police official at the place where the accused is in custody, the sum of money determined by the court in question; or |
| (b) |
shall furnish a guarantee, with or without sureties, that he or she will pay and forfeit to the State the amount that has been set as bail, or that has been increased or reduced in terms of section 63(1), in circumstances in which the amount would, had it been deposited, have been forfeited to the State. |
[Section 60(13) substituted by section 9(b) of Act No. 66 of 2008]
| (14) |
Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for purposes of his or her trial. |
[Section 60(14) substituted by section 5(b) of Act No. 34 of 1998]
[Section 60 substituted by section 3 of Act No. 75 of 1995]
Contingency Fees Act, 1997
