Criminal Law & Bail

Section 35 of the Constitution does not go quiet because you are in handcuffs. On arrest you have the right to remain silent, to be told promptly that you have that right and what the consequences are of giving it up, and not to be compelled to make any confession or admission that could be used against you.

You must be brought before a court as soon as reasonably possible, and not later than 48 hours after arrest - or the end of the first court day if those 48 hours run out over a weekend or after hours. At that first appearance you must be charged, or told why your detention continues, or released. While detained you are entitled to consult the legal practitioner of your choice and to be informed of that right promptly, to conditions of detention consistent with human dignity, and to be visited by your spouse or partner, next of kin, religious counsellor and doctor. Everything in this paragraph must be conveyed to you in a language you understand.

Confirm who you are, be courteous, do not resist - and say nothing about the merits of the case until you have spoken to an attorney. That is not evasion; it is the exercise of a right the Constitution states three times over: the right to remain silent, the right not to be compelled to any confession or admission, and the presumption of innocence with the right not to testify.

The reason is practical. In the noise and fear of an arrest, people explain, justify and fill silences - and every one of those words is written down. A statement made at the police station cannot be unmade, and even evidence you later give in your own bail application goes onto the record: the Act itself provides that if you testify at bail proceedings, the court must warn you that what you say may be used against you at trial. The time to give your version is after advice, not before it.

Bail is not a plea about guilt or innocence. The single question is whether the interests of justice permit your release while the case runs - the court weighs the risk that release would endanger the public or a particular person, that you would evade your trial, influence or intimidate witnesses, tamper with evidence, or undermine the proper working of the justice system, against your right to liberty.

How heavy your burden is depends on the charge. For most offences the point of departure is release if the interests of justice permit. For the serious offences in Schedule 5, the Act reverses the onus: you must adduce evidence that satisfies the court that the interests of justice permit your release. For the gravest, in Schedule 6, you must go further and prove exceptional circumstances. Since 2022 certain offences committed within a domestic relationship carry their own reversed onus as well.

Two things people do not expect. You or your attorney are compelled to disclose your previous convictions and any pending charges to the court. And the bail record follows you: what is said there forms part of the trial record. It is why a bail application is prepared, not improvised - and why you want an attorney at the first appearance, not the second.

There is no tariff. The amount depends entirely on the matter - the charge, your circumstances, and whether bail is fixed at the police station, by the prosecutor or by the court. The amount is set case by case, and the court may also attach conditions rather than money, or both.

What we can tell you with certainty is that speed matters more than the figure. Phone us before the first appearance, not after it.

Often, yes - but not by a court. Courts do not sit after hours, and the Act says expressly that an arrested person is not entitled to be brought to court outside ordinary court hours. After-hours release happens at the police station, along two routes.

For less serious offences, a police official of the rank of non-commissioned officer or above may release you on bail before your first court appearance, against a cash deposit at the police station. For a further band of offences listed in Schedule 7, the prosecutor may authorise release on bail, in consultation with the investigating officer. Neither route is available for the most serious charges - or, since 2023, for offences against someone in a domestic relationship with you or in breach of a protection order - and where neither applies, the 48-hour rule and the first court day govern.

An attorney's part in this is engaging the investigating officer and the prosecutor, having the amount fixed, and making sure the paperwork does not sleep until Monday. Phone us during office hours; matters that arise after hours are attended to as capacity allows.

The Constitution answers this directly: every detained and every accused person has the right to have a legal practitioner assigned by the state, at state expense, if substantial injustice would otherwise result - and to be told of that right promptly. In practice that is Legal Aid South Africa, and for most people facing a criminal charge without means, substantial injustice is exactly what an undefended trial would be.

We are a private firm, and our fees are discussed openly at the first consultation - a rough estimate depends on the charge and how far the matter must go. What we would say to anyone weighing the cost: do not face a criminal charge alone. Whether it is us or Legal Aid, be represented.

We would prefer it. A great deal is lost over email, and these are matters where sitting across a desk from one another makes a real difference. Where the distance genuinely makes that impractical, we consult by video call instead.

No. We advise in consultation. A message is the right way to arrange an appointment, but not the right way to receive advice on something this consequential.

If someone has been arrested, do not wait to gather documents. Telephone first and bring what you have afterwards. If you have nothing, come anyway - it is better to start the conversation than to wait until the file is tidy.

Telephone 087 133 3595, or send the short form on this site. We will contact you to arrange a date and time.