How to apply for a bail

Bail application is whereby an individual who is in custody makes a request to the court that he may be released pending the conclusion of the criminal proceedings against him or her. Applications for bail may be made at several stages in the criminal process. These stages are as follows;
 • At the police station after being arrested and upon being charged. Member in Charge of the police station has the power to grant bail.
 • When an accused is brought before the court pending trial. The application can be made verbally or in writing to the Judge or Magistrate who is presiding over the trial.
 • Pending an appeal after conviction and sentence.
 • Following a successful appeal against conviction, and
 • Bail pending review of the conviction and sentence.

In terms of Section 116 and 117of the Criminal and Procedure And Act (Chapter9: 07), with regard given to the provisions of Section 50 as read together with Section70 of the constitution, states the rights of arrested and detained persons. An accused person has the right to be presumed innocent until proven guilty.  He or she may at any time apply verbally or in writing to the court (the Judge or the Magistrate) before whom he is appearing to be admitted to bail.

Subject to section 116, a person may be admitted to bail or have his conditions altered. Subject to subsection (4) of section 13 of the constitution, in any case in which the court has power to admit the accused person to bail, he may refuse to admit to bail if he considers it likely that if such a person were admitted to bail he would-
(a)    Not stand his trial
(b)    Interfere with state witnesses or,
(c)    Commit an offense.

If one is in custody and wishes to be realised until sentence hearing, one files, with the Criminal Registrar of the court, the Notice of Appeal. (Bail pending appeal). File the original plus three copies of the notice of appeal, your written argument why you should be released and your sworn affidavit or statement of facts. One copy must be filed with the Registrar, the other one is served to the prosecutor who is handling the matter and the last copy should be kept by the accused. The prosecutor is required to file his response three days before the hearing stating whether he is consenting to bail, if he/she is not, he must provide reasons why.

Note that to apply for bail pending appeal, you first have to get permission which is the leave to appeal. The court of appeal will approve your appeal only if it has merit or if you have a chance to succeed.
When you apply, you must be fully prepared to present your argument outlining why you must be granted bail. If you do not convince the judge at bail hearing that your appeal has merit, you will not be granted bail.

According to Mr Muyemeki, a legal practitioner of Antonio and Associates, one cannot make a bold allegation against an accused. Evidence which is tangible must be adduced to (see state versus Husshey 1991(2), a Supreme Court case). But in a bail pending appeal application, the accused has to prove beyond reasonable doubt that he must be granted bail because he has already been convicted.

"While enjoying liberty but enjoy with restrictions. Basically, freedom is a fundamental right to anyone and the presumption of innocence works in someone's favour. At times the court may err and convict an accused person", said Mr Muyemeki.

An accused person who has been refused bail pending trial may make further applications, however, a court must not hear a further application unless there are changed circumstances or the applicant was unrepresented when bail was refused.

In any case, every charge is an allegation because the accused has not been proven guilty. The state must prove beyond reasonable doubt that the accused is not a suitable candidate for bail.

On bail pending review and bail pending appeal applications, stiffer conditions must be set and not to deny bail. If accused can prove that he is a suitable candidate for bail, if he has strong supporting evidence then he may be admitted to bail.

Mr Editor Mavuto, a prosecutor in the Attorney General's Office is of the view that justice must always prevail when one is to be granted bail.

"Serious cases which are also known as Third Schedule offenses can only be admitted to bail with the consent of the state. Applicant must prove on a balance of probability that he is a suitable candidate and must give enough surety that he will not abscond trial", said Mr Mavuto.

Cases of murder, armed robbery, rape, kidnaping and aggravated indecent assault are examples of Third Schedule offenses and the Magistrates' court do not have jurisdiction and can only grant bail with the consent of the State.

The court considers the following matters before the hearing of the application for bail;
 • What are the charges? When were they laid? How stale are they?
 • Is there a presumption in favour of bail or is there an onus that must be discharged by the applicant.
 • What evidence is said to support the charge?
 • Is the state's case against the accused strong  or it is weak or it is too early to tell because the investigating officer has not yet finished with the investigations?
 • Is the trial ready to take off?
 • Has the applicant got prior convictions?
 • Has the applicant ever been on bail before, if so did he honour the bail conditions, if not, why not why will it be different this time?
 • Factors personal to the accused, for example, marital status, health, dependants etcetera.
 •
If the state maintains their opposition to bail, is it necessary to explore the reasons for this. Sometimes opposition can be overcome with "negotiated" conditions for example offering that the accused report daily to the nearest police station. The applicant can liaise with the prosecution before the commencement of the hearing.

Bail applications are won or lost on the facts that arise in the bail hearing. As bail is essentially about ensuring that a person turns up to answer charge levelled against him. The facts must address that issue. The more serious the charge, the stronger the case and the higher the risk of the person not to turn up to court to answer the charge. The less serious the charge, the weaker the evidence, the lower the penalty, and the stronger the ties to the jurisdiction, the more likely it is that person will come to court to answer the charge.

Bail is not about the total elimination of the risk of failing to appear. Accordingly, in a bail application the strict rules of evidence do not apply. The state may give evidence which ties the accused to the offence.

Additionally the state may outline the accused's prior criminal history and reasons why they oppose bail. An accused may also lead his evidence.

The court admitting the accused to bail must give some conditions. In addition it must make sure the accused understands the conditions and the consequences of not complying with them.

Mufaro Gracious Marira is a student of Journalism and Communication at Christian College of Sothern Africa (CCOSA)