Following the abrupt bail application brought by accused persons in the foiled Fourways Mall robbery case, we spoke to a legal expert to explain how bail works.
Garry Hertzberg, practising attorney at Dewey Hertzberg Levy Inc Attorneys, explained that there is nothing untoward about bringing a bail application at this advanced stage of case proceedings.
According to Hertzberg, the Criminal Procedure Act (CPA) makes provision that an accused, who is in custody in respect of an offence, shall 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.
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Hertzberg also said Section 35 of the Constitution provides that everyone arrested for allegedly committing an offence has the right to be brought before a court, not later than 48 hours after arrest, and to be released from detention if the interests of justice permit.
He, however, highlighted that Schedule Six offences, which some of these accused persons are facing, under the CPA refer to extremely serious offences such as premeditated murder, armed robbery and rape.
“When a person is charged with an offence under this schedule then 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,” he explained.
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“The effect hereof is that the accused bears an onus to adduce evidence which satisfies the court on a preponderance of probability that there are exceptional circumstances and which in the interests of justice justify the release of the accused on bail.”
