Peremptory and discretionary bail conditions

- The court may impose conditions on an accused’s release on bail which are in the
interests of justice (section 60(12)).1
- The granting of bail is subject to the general peremptory condition that the accused
appears at a specific date, time and place to which the proceedings are adjourned
(section 58).2
- The court may impose a number of additional discretionary conditions designed to
ensure the accused’s attendance at trial.
- These discretionary conditions are tailored to the accused’s particular circumstances.
- The court must take an active role where the prosecution, or the defence, fail to raise the
possibility of suitable discretionary conditions.3
- These discretionary conditions may be imposed together with a bail amount of money or
as an alternative to a sum of money.4
- The most common discretionary conditions attached to bail are the following (section
62):

a)  reporting in person to a specified person or authority at a specified time and place

b)  a prohibition on physical presence at certain places
c)  a prohibition, or a control, over communications between the accused and
witnesses for the prosecution5

1
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.
2
The accused must remain present at the court until excused.
3
S v Essop 2018 (1) SACR 99 (GP) para 41, the court prohibited the accused from applying for a
passport or travel documents; S v Mathonsi 2016 (1) SACR 417 (GP) para 29, accused prohibited
from contacting State witnesses by email and social media; S v Savoi 2012 (1) SACR 438 (SCA) para
2, accused had to notify investigating officer of any business travel overseas, each trip could not
exceed 14 days, passport had to be returned to investigating officer after every trip; S Jacobs 2011 (1)
SACR 490 (ECP) para 1, accused had to report to local police station every Monday of the week, and
had to refrain from contacting State witnesses.
4
S v Nell and Others 2018 (1) SACR 576 (GJ) para 19, a court has an independent duty to
investigate alternatives to bail; S v Branco 2002 (1) SACR 531 (W) at 537a–b, ‘a court must consider
suitable conditions as an alternative to the denial of bail and a failure to do so amounts to
misdirection’.
5
S v Josephs 2001 (1) SACR 659 (C) at 669; Gade v S [2007] 3 All SA 43 (W) para 33, the prohibition
must be widely defined to include both direct and indirect communications in respect to all potential
 d)  a condition with regard to the place where any document may be served on the
accused
e)  a condition ensuring that the proper administration of justice is not jeopardised by
the accused’s release, or
f)  a condition that the accused be placed under the supervision of a probation officer
or a correctional official.

- A court may at any stage add any other specific discretionary conditions of bail on
application by the prosecution.
- The prosecution may also apply at any stage to have these conditions amended or
supplemented.
- Amendments are usually made to bail and bail conditions as the accused’s
circumstances change (section 63(1)).

Basic principles for determining conditions of bail A bail condition:

 may not be contra bonos mores6
 may not be ultra vires7
 may not be vague or ambiguous, and
 must be reasonably possible and practicable.

Failure of accused on bail to appear at trial

- In terms of section 67, where an accused is released on bail and (i) fails to appear at the
place, date and time appointed for trial, or to which the proceedings are adjourned, or (ii)
fails to remain in attendance at trial, the court must declare bail provisionally cancelled,
and the bail money provisionally forfeited to the State, and may issue a warrant for the
arrest of the accused (section 67(1)).8

State witnesses.
6
S v Louw 2000 (2) SACR 714 (T) at 723, a condition preventing accused from marrying fiancé is
contra bonos mores; De Jager v Attorney-General, Natal 1967 (4) SA 143 (D) at 143, a condition
preventing a husband from contacting his State witness and complainant wife not contra bonos
mores.
7
Conditions not found in any law are ultra vires.
…

Criminal liability of a person who is on bail on the ground of failure to appear

or to comply with a condition of bail

In terms of section 67A, an accused released on bail and who fails:

a) without good cause to appear on the date and at the place determined for his
appearance, or
b) to remain in attendance until the proceedings have been disposed of, or
c) without good cause, to comply with a condition of bail imposed by the court in terms
of sections 60, 62 or 63;
d) such an accused shall be guilty of an offence and on conviction be liable to a fine or
to imprisonment not exceeding one year. Section 67A creates a statutory offence and
the following procedures apply:

8
S v Lerumo and Others 2018 (1) SACR 202 (NWM) para 6, held that the warrant of arrest
must be executed immediately on issue; but in Sulani v Mashiyi and Another 2018 (2) SACR
157 (ECP) para 3, it was held that in exceptional circumstances, on good cause shown, a
bail court is not precluded from staying the execution of a warrant until a future date. See
also S v Swartbooi 1991 (2) SACR 54 (Nm); S v Cronje 1983 (3) SA 739 (W) at 741A, the
court is obliged to provisionally cancel the bail and to declare it provisionally forfeited.
 A charge sheet must be drawn up and a formal trial held.9
The prosecution must prove the absence of good cause beyond a
reasonable doubt.
The prosecution must also prove mens rea in the form of dolus or culpa.

- The fact that bail money has been forfeited should play a role in the consideration of a
suitable sentence upon conviction.
- It is also possible in terms of section 70 for the Minister of Justice, or any officer under
the Minister’s authority, or the court concerned, to remit the whole or any part of any bail
money forfeited under sections 66 or 67.

Cancellation of bail

- In terms of section 68(1), a court, before which a charge is pending in respect of which
bail has been granted, may issue a warrant for the arrest of the accused, or commit the
accused to preventative detention, or cancel bail upon information on oath that:10
a) the accused is about to evade justice or abscond in order to evade justice
b) the accused has interfered with or threatened, or has attempted to interfere or
threaten, witnesses
c) the accused has defeated or attempted to defeat the ends of justice
d) the accused poses a threat to the safety of the public or of a particular person
e) the accused has not disclosed, or incorrectly disclosed, all previous convictions in the
bail proceedings or where the true list of previous convictions has come to light after
the accused’s release on bail
f) further evidence has become available or factors have arisen which might have
affected the decision to grant bail, or
g) it is in the interests of justice.

- It amounts to an irregular cancellation of bail where the judicial officer does not properly
apply his mind to these factors when considering a cancellation.11

9
The court is therefore not able to enquire in a summary manner.
10
A court may therefore impose more severe conditions.
11
S v Matitwane 2018 (1) SACR 209 (NWM) paras 5–6, a magistrate cancelled bail on the summary
belief that accused was simply using delaying tactics and had no intention of finalising the matter –
but without canvassing the s 68(1) factors in her decision and without giving the accused an
opportunity to object to the cancellation (para 13).
- The accused should first be brought before court on the warrant of arrest after which the
court must consider the cancellation of bail. The onus is on the prosecution to satisfy the
court, on a balance of probabilities, that there are sufficient grounds for cancellation.
- The accused is afforded the opportunity to rebut any assertion that bail should be
cancelled.12

- Where it is not practicable to approach the relevant court, any other magistrate may
upon the application of any peace officer and upon a written statement on oath by such
officer that he has reason to believe that some or all of the above section 68(1) factors
exist, issue such a warrant (section 68(2)).
- The magistrate may, if satisfied that the ends of justice will be defeated if the accused is
not placed in custody, cancel the bail and commit the accused to prison.
- The committal will remain in force until the conclusion of the relevant criminal
proceedings unless the court before which the proceedings are pending reinstates bail
(section 68(2)).13
- Section 68 applies mutatis mutandis to bail pending a review in terms of section 307 or
an appeal in terms of section 309.
- An accused has an automatic right of appeal against the withdrawal of bail by a lower
court (that is, no leave to appeal required).
- A court may, upon application by the accused himself or herself, cancel bail and refund
the bail money where the accused is in custody on any other charge or is serving a
sentence (section 68A)).

12
Once the accused appears in court after arrest, a second inquiry must be held as to his status.
13
The accused could therefore apply to the court for bail to be reinstated.