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 The reality is that the arrest of a person doesn’t necessarily only happen to violent or hardened criminals

Below is an email to The Legal Advice Office from last Thursday.

 “ The son of a friend of mine was arrested two weekends ago In Rondebosch (Cape Town) for drunk driving and this has been quite a traumatic experience for her and her family to get their son released on bail. I have to admit I know nothing about bail or the bail process and I am worried that I won’t know what to do if, heaven forbid, my own child be arrested on some future occasion.

Please advise as to how bail works and what one needs to know and do in these circumstances.”

The reality is that the arrest of a person is much more common than one realises, and it doesn’t necessarily only happen to violent or hardened criminals. It can happen for even minor offences. It is therefore important that one knows the basics of bail and how the process works. One also needs to know what to do, when to do it and how to go about it; in order for either yourself or a loved one to be released on bail. 

Firstly, it is important to be aware of the different types of bail.

Our law makes provision for three types of bail, namely police bail, prosecutor’s bail, as well as court bail. 

  1. Police bail is usually fixed after hours at the particular police station where the arrested person is detained after being arrested and is only possible when a person is accused of a ‘less serious’ crime or charge, for example, petty theft, shoplifting, drunk driving or minor common assault. 

    To have someone released on police bail, it is firstly important to determine where the person is being detained. It will ordinarily be the police station nearest to where the incident took place. Take proof with you of where the person lives and works. As soon as you know where the person is detained, you can approach the relevant arresting officer or the police officer in command of that station and ask if the person has already been charged. If the person has been charged, the police docket will have a ‘CAS’ number and be allocated to an investigating officer. Ask who the investigating officer is and from him/her if he/she will be willing to fix bail - and if yes, on what basis.

    Important to remember is that police bail can only be fixed if a person has a clean criminal record – thus no former offences or pending cases against their name. If police bail cannot be granted, the police may, according to the law, detain a person for 48 hours for further investigation and processing before the person must in terms of section 35 the Constitution be brought before a court. 
  1. Prosecutor’s bail is commonly determined after hours at the particular police station where the accused is being held. This type of bail can be fixed for more serious offences, such as for example culpable homicide, assault with the intent to do grievous bodily harm, housebreaking and theft where the alleged value of the stolen goods does not exceed R20000.00. Prosecutor’s bail may not be fixed by a prosecutor for such serious offences such as armed robbery, murder or rape. 

    The same process that’s followed with police bail, can be followed here. What differs from police bail, however, is that a state prosecutor has to be present during the fixing of bail. A list of the state prosecutors and more specifically which prosecutor is on duty can be obtained at your nearest Magistrate’s Court or, if you are lucky the Police station where the accused is detained may have that list of duty prosecutors and who precisely is on duty for that particular day. 

    It is important to remember that the permission of the investigating officer, as well as the prosecutor’s permission, is required for this type of bail. The state prosecutor may also link any reasonable conditions to the bail, such as that the accused may not contact the complainant, etc. 
  2. Court bail is fixed by a Magistrate in court in respect of any other offence. In terms of our law, a person has to be brought before ca out within 48 hours, where the person can then apply for bail. This will be the case where police- or prosecutor’s bail had not been permitted or requested. 

    The process followed during court bail is complex, given that the court has to take numerous factors into account when deciding whether to grant bail or not.

Factors that the court will take into consideration include the offence itself, whether the person has a fixed address, any previous offences and whether the person has any pending cases against him/her. 

It is very important to remember is that the State has the right to postpone any bail application for a period not exceeding seven days for further investigation of the offence, which means the accused will be held in prison until he can be brought before the court again. The State may then again request a postponement for a formal bail hearing.  With the congestion in our courts these days, it can happen that a bail application only takes place two weeks’ after and arrest. To assist with managing the complex process of court bail, and to prevent a person from having to wait for two weeks for a bail application it’s important to acquire the assistance of a criminal law specialist.  

If you are the arrested, it is always wise not to just make a statement. Often one is under intense stress at the time and one’s thoughts are not always clear. In which case it is always preferable not to make a statement at that point. It is therefore advisable in all instances of arrest to acquire the assistance of a criminal law specialist that can help manage the legal process best during this taxing time.

 Please visit our website at or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a specialist Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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South Africa

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