What is the difference between Schedule 5 and Schedule 6 bail?

The difference between Schedule 5 and Schedule 6 bail is who has to prove what, and how much they have to prove.

For an ordinary offence, the state in practice carries the burden. The prosecutor must show the court why you should not be released. You do not have to prove anything.

For a Schedule 5 offence, that flips. You must satisfy the court that the interests of justice permit your release.

For a Schedule 6 offence, it flips further. You must satisfy the court that exceptional circumstances exist which, in the interests of justice, permit your release.

There is also a third reverse-onus category that many people miss. Since 5 August 2022, section 60(11)(c) applies the Schedule 5 test to any offence against a person in a domestic relationship, as defined in the Domestic Violence Act, and to breaching a protection order, even if the offence itself is not listed in Schedule 5. Police bail and prosecutor-authorised bail are not available for those offences. Our guide on the GBV laws explains the background.

Same courtroom, same magistrate, very different starting positions. The schedules come from the Criminal Procedure Act 51 of 1977. Bail itself is a constitutional matter: section 35 of the Constitution of the Republic of South Africa, 1996 gives an arrested person the right to be released on reasonable conditions if the interests of justice permit.

How the three positions actually work

Ordinary offences. The Act does not spell out an onus for these, but in practice the prosecutor stands up and tells the court why bail should be refused. Common grounds are that you are a flight risk, that you may interfere with witnesses or evidence, that you may commit further offences, or that your release would undermine public order. If the state does not make that case, you should be released. Many bail applications at this level are settled in minutes because the prosecutor does not oppose.

Schedule 5 offences. These are more serious matters, such as murder or rape that is not in Schedule 6, and theft or fraud involving more than R500 000. The prosecutor tells the court the charge falls under Schedule 5, often by handing up a written confirmation from the Director of Public Prosecutions under section 60(11A). You then have to put evidence before the court showing that releasing you is consistent with the interests of justice. That means addressing every one of the grounds above and showing why none of them applies to you.

Schedule 6 offences. These are the most serious matters in the Act, such as planned or premeditated murder, rape in the aggravated forms the Schedule lists, robbery involving a firearm, grievous bodily harm or the taking of a motor vehicle, and a Schedule 5 offence committed by someone with a previous Schedule 5 or 6 conviction or while out on bail for one. You must show exceptional circumstances. The law does not give a closed list of what counts, and courts have deliberately kept it open. What is clear is that it is a higher bar than the interests of justice test. Simply being employed with a fixed address and no previous convictions is normally the starting point, not the exceptional part.

Who decides which schedule applies

The prosecutor does, in the first instance. The National Prosecuting Authority controls the charge, and the schedule follows from the offence charged and its circumstances. Under the National Prosecuting Authority Act 32 of 1998 the decision to prosecute and on what charge belongs to the prosecution.

That has a practical consequence. Whether you face a Schedule 5 or a Schedule 6 bail application can depend on how the charge is framed and on the facts the state puts up, such as the amount involved or whether a firearm was used. If the schedule is wrongly invoked, your legal representative can and should challenge it, because the whole burden of the application turns on it.

Section 50(6)(c) says a Schedule 6 bail application must be considered by a magistrate's court, unless the Director of Public Prosecutions, or a prosecutor authorised in writing, directs that it go to a regional court. In practice many serious applications end up in the regional court where the trial will be heard. Under section 50(6)(d) the court may postpone bail proceedings for up to seven days at a time, for example while the prosecutor obtains the written confirmation, which is why these applications seldom finish at the first appearance.

In bail proceedings in any schedule, section 60(11B) also obliges you, or your legal representative, to tell the court about previous convictions, pending charges, any protection order in favour of the complainant, and whether you are on parole or correctional supervision. Wilfully hiding them is an offence under section 60(11B)(d) and damages the application.

What "exceptional circumstances" means in practice

Nobody can give you a checklist, because the courts have not created one and each case is decided on its own facts. What magistrates are looking for is something that lifts your case out of the ordinary run of cases where bail is refused.

Things routinely put before courts include a serious medical condition that cannot be managed in custody, a genuinely weak state case that falls apart on its own documents, being the sole carer of young children with nobody else available, or an alibi that can be verified now rather than at trial. Whether any of these persuades a particular court in a particular case is not something anyone can promise you.

What almost never works on its own is a list of ordinary good qualities. Employment, a fixed address, family in the area and no previous convictions are relevant and you should put them up, but in a Schedule 6 application they are the floor rather than the ceiling.

Worked example

This example is illustrative. The names, dates and figures are invented.

Sipho is arrested on a Friday evening and appears in court the following Monday. The prosecutor announces that the state regards the charge as falling under Schedule 5 and hands up written confirmation. The magistrate postpones the matter for seven days for a formal bail application and remands Sipho in custody.

Sipho's family has seven days. They do three things. They get a letter from his employer confirming he has worked there for four years and that his job is held open. They get his lease, showing he has lived at the same address for three years. And they obtain an affidavit from his sister confirming she will surrender her passport as a surety and stand as a supporting witness.

At the hearing Sipho gives evidence in an affidavit and is cross examined on it. The investigating officer testifies that the complainant lives two streets away, so witness interference is a real risk. Sipho's representative offers a condition that he live at his sister's address in a different suburb and report to the police station twice a week.

The court grants bail of R15 000 with those conditions attached. If the state had invoked Schedule 6 instead, that same package would probably not have been enough on its own, because none of it is exceptional. That is the practical difference between the two schedules. If Sipho later needs to move house or change his reporting days, our guide on changing bail conditions explains how, and our guide on getting bail money back explains what happens to the R15 000 at the end of the case.

What to do this week

1. Find out which schedule the state is invoking. Ask at court, or ask the legal representative to ask. Everything else follows from the answer.
2. Get the date of the bail hearing in writing and put it somewhere you will not lose it.
3. Start collecting proof of address and employment now. These take days to obtain and the hearing will not wait.
4. Identify a surety who can come to court with their own identity document and proof of address.
5. Work out what the family can realistically raise in cash and be honest about it. A bail amount you cannot pay is the same as a refusal.
6. Tell the court you want a lawyer and cannot afford one if that is the position. Phone Legal Aid South Africa on 0800 110 110.
7. Read how to apply for bail so that the process itself is not a surprise.

Documents to gather

Certified copies of your identity document and those of any surety. Proof of residence, ideally a lease, a municipal bill or a signed letter from the property owner with their own proof of address. A letter from your employer on a letterhead, confirming the position, how long you have held it and that the job remains open. Payslips. Proof that you have no passport, or the passport itself if you are offering to surrender it. Medical records and a doctor's letter if health is part of your case. Birth certificates and school letters if you are the primary carer of children. Any documentation that shows the weakness of the state case, such as receipts, messages or a signed alibi statement.

Bring three copies of everything: one for the court, one for the prosecutor and one for yourself.

A realistic timeline

Schedule 5 and Schedule 6 applications take longer than ordinary bail because the investigating officer usually testifies, and because the court needs proper time to hear evidence rather than an argument across the bar.

Common mistakes and what they cost

• Not knowing which schedule applies. People prepare an ordinary bail package for a Schedule 6 application and lose. Ask on day one.
• Treating good character as exceptional. In a Schedule 6 matter, employment and a clean record are the beginning of your case, not the whole of it.
• Sending a surety without documents. A surety with no identity document and no proof of address is not a surety.
• Overstating anything on affidavit. You will be cross examined. An exaggeration that is exposed damages everything else you said.
• Waiting for the hearing to start collecting papers. Employer letters and medical records take days.
• Applying again with nothing new. A fresh application generally needs new facts, not a second attempt at the same argument. Our guide on what happens at a bail appeal compares an appeal with a new application.
• Getting bail and then breaching a condition. Bail can be cancelled and the money forfeited, and a second application after a breach is far harder.

If you cannot afford an attorney

Say so in court. Under section 35 of the Constitution of the Republic of South Africa, 1996 you have the right to a legal practitioner at state expense where substantial injustice would otherwise result, and the court must deal with the request rather than push on without it. Do not let a Schedule 5 or Schedule 6 application be argued while you stand there unrepresented if you can avoid it.

Legal Aid South Africa is on 0800 110 110. It applies a means test, and the thresholds change, so phone rather than assume you earn too much. Legal Aid covers criminal defence in most serious matters, which is exactly the category these bail applications fall into. University law clinics in most major centres take criminal matters, and Legal Aid practitioners appear in these courts every day and know the local magistrates and prosecutors well.

If you are paying privately, see what a criminal attorney costs. An opposed regional court bail application is one of the more expensive single events in a criminal matter, because it is effectively a mini trial.

Frequently asked questions

The question that comes up most is whether Schedule 6 means bail is impossible. It does not. It means you carry a heavy burden and you must lead evidence rather than argue. People also ask whether they can change the schedule. You cannot, but you can challenge whether the state has correctly placed the charge in that schedule, and that challenge is sometimes the strongest part of an application. And people ask whether they should testify. In a Schedule 5 or 6 application you generally must put evidence before the court, usually by affidavit, and you can then be cross examined on it. Under section 60(11B)(c), the court must warn you that anything you say in bail evidence may be used against you at your trial, so that is a decision to take with a legal representative, not alone.