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Inside a South African Bail Hearing: What Really Happens in 2025

Published

2 months ago

August 18, 2025

Chiraag

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It’s one of the most decisive moments in the South African criminal justice system. The courtroom is quiet. The magistrate is listening. And the accused is waiting to find out: will they go home tonight, or back to a cell?

This is the reality of a bail hearing in South Africa in 2025. While the process might look simple on the surface, it’s shaped by tight legal rules, constitutional rights, and, in recent years, some major shifts, especially in cases involving gender-based violence.

Step One: Arrest and the 48-Hour Rule

By law, anyone arrested in South Africa must appear before a court within 48 hours. This is often the moment when bail is first considered. If the charge is minor, such as petty theft or public nuisance, bail might be granted at the police station by an officer (called police bail) or by a prosecutor before court (prosecutor’s bail).

However, when the charges are serious, or if it’s a gender-based violence case, only a magistrate or judge can decide. There are no exceptions.

Step Two: The Bail Hearing

The formal bail hearing happens in court, usually in a magistrate’s courtroom. The defence presents an affidavit or arguments explaining why the accused should be released. The prosecution, on the other hand, can oppose bail, particularly if there’s a risk of the accused fleeing, interfering with witnesses, or posing a danger to the public.

By 2025, gender-based violence has become a major focus for bail reform. In these cases, courts must now carefully consider the safety of victims. Police and prosecutor bail are no longer allowed in such matters. The decision must go through the courts.

What the Court Considers

The magistrate doesn’t make decisions based on feelings. They examine:

The nature of the offence (Is it violent? Serious? Listed under Schedule 5 or 6?)
Criminal history (Has the accused been convicted before?)
Ties to the community (Does the accused have a fixed address, job, or family nearby?)
Flight risk (Is there a passport? Money to escape? No local connections?)
Safety risks (Could the accused intimidate a witness or harm someone?)
The strength of the case (Is there strong evidence already on record?)

In 2025, the law now requires courts to also consider non-financial bail conditions if the accused cannot afford to pay. These could include electronic monitoring, regular police check-ins, or strict travel restrictions.

Schedules and Burden of Proof

Offences are grouped into categories called “schedules”:

Schedule 1: Minor crimes (e.g., shoplifting). Bail is usually straightforward.
Schedule 5: Serious crimes (e.g., robbery, rape without aggravating circumstances). The accused must prove that bail is in the interest of justice.
Schedule 6: The most severe (e.g., premeditated murder, organised crime). Bail is only granted if exceptional circumstances exist.

In other words, the more serious the crime, the harder it is to get bail, and the more the accused has to prove.

Postponements and New Applications

If a bail hearing can’t be finalised immediately (for example, the prosecution needs more time to verify information or a victim protection order is pending), it can be postponed, but only briefly. Courts are under pressure in 2025 to avoid unnecessary delays under Section 342A of the Criminal Procedure Act.

And if bail is denied? It doesn’t have to be the end. If new facts come to light, such as a major error in the original affidavit or new evidence that clears up a key doubt, the accused can apply again under Section 65(2).

Real Courtroom Examples: Johannesburg, 2025

In one recent Joburg case, an accused charged under Schedule 6 was denied bail in the magistrate’s court but later granted it on appeal. Why? He had strong community ties, no passport, and three children who depended on him. The high court found that he wasn’t a flight risk and released him with strict conditions.

In another 2025 case, an appeal was rejected because the accused couldn’t present anything “exceptional.” The court made it clear: being employed or having a clean record is not enough if the offence is serious and the risks remain high.

The Bigger Picture: Why This Matters

Bail is not about guilt or innocence. It’s about trust, responsibility, and justice on both sides. For victims of crime, especially in GBV cases, it can feel like betrayal when an accused is released. For the accused, it’s a chance to continue life while preparing a defence.

In South Africa, the Constitution guarantees the right to bail if the interests of justice permit. But in 2025, with public pressure, high-profile cases, and legal reforms in motion, magistrates are more cautious than ever. Safety, fairness, and facts now weigh heavier than assumptions.

Behind every bail application, there’s a human story. Some are heartbreaking. Some are hopeful. And many unfold right here, in the courtrooms of Johannesburg.