WRONG SIDE OF THE LAW: Do you know what to do if you're arrested? Knowing what the three primary types of bail are could spare you spending time in a jail cell. Image: Shutterstock
UPDATE - We've added advice including your right to request an officer's identity card as per the Criminal Procedure Act and how to behave during an arrest.
Cape Town - Arrests on South Africa's roads are not only reserved for drunk drivers and/or hijackers. Reckless driving and speeding can land you in a jail cell.
You could be on the receiving end of a phone call informing you that a friend or family member has been arrested.
Do you know what the legal process is in the event of an arrest? Do you know what options are available after an arrest or even a conviction?
You've just been arrested, what now?
Arrive Alive spoke to Adriaan Janse Van Rensburg from Phatshoane Henney Attorneys for insights into bail applications after an arrest.
The reality is that arrests are much more common than one realises and it doesn’t only happen to violent criminals, says Van Rensburg.
Read: Would you bribe a traffic cop?
Van Rensburg said: "If you are the arrested, it is always wise not to just make a statement. Often one is under stress and one’s thoughts are not always clear, in which case it is preferable not to make a statement in such circumstances.
"It's actually 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.
"Our law makes provision for three types of bail, namely police, prosecutor’s and court."
Read: Is there ever a good reason to skip a traffic light?
Respect the process
If pulled over, you have the right to request the officer’s identity card. If an officer does not present it, they're contravening the Criminal Procedure Act, reports Arrive Alive.
You have the right to be treated with respect contrary to horrifying examples of police brutality in SA.
If arrested, your first call should be to a lawyer and then to a family member. As Van Rensburg said, you will be monitored and what you say or do can be held against you in the event of a court trial.
Arrive Alive editor Johan Jonck said: "I would like to get the message across that we need not be confrontational and never assume the worst of the arresting officer. There are a few bad examples but most perform the critical task of removing lawless road users from our roads.
"In doing so are they're protecting you and our loved ones. Treat each other with respect and never be confrontational."
Police bail, says Van Rensburg, is usually fixed after hours by the particular police station where the arrested person is detained. Police bail is possible when a person is accused of a "less serious" charge such as common assault or theft.
This type of bail can only be fixed if the applicant has no prior criminal history or pending cases. If police bail cannot be granted, the police may, according to the law, detain you for up to 48 hours.
Prosecutor’s bail is determined by police stations. This type of bail can be fixed for more serious offences (culpable homicide, assault with the intent of grievous bodily harm etc). Prosecutor’s bail may not be fixed for offences such as murder or rape.
The process is the same as police bail though a state prosecutor has to be present during bail fixing. Arrive Alive said: "A list of the particular state prosecutors and more specifically which prosecutor is on duty, can be found at your nearest Magistrate’s Court."
Van Rensburg said: "It is important to remember that the investigative officer as well as the prosecutor’s permission is required for this type of bail."
Watch: The reason why taxis disregard the law
Court bail is fixed in court in respect of any other offence.
Van Rensburg said: "In terms of South African law a person has to be brought before court 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, seeing as there are various factors that the court has to take into account when deciding whether to grant bail or not. Factors the court needs to consider include whether the person has a fixed address, any previous offences and whether the person has any pending cases against him/her."
The state has the right to postpone any bail application for a period not exceeding seven days, which means the accused will be sent to jail until he/she can be brought before court.
The state could request a postponement for a formal bail hearing and given the congestion in SA courts, it could be that the bail application takes place at a later date.
Have you or a family member/friend been arrested for a traffic offence in South Africa? Share your experience with Wheels24.
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