BAIL ACT 1982 - SECT 49
BAIL ACT 1982 - SECT 49
49 . Surety’s undertaking to pay money, enforcing
(1) Where an accused
has failed to comply with any requirement of his bail undertaking mentioned in
section 28(2)(a) or (b) the following provisions of this section apply for the
purpose of enforcing payment to the State of any sum thereupon payable by a
surety in terms of his surety undertaking —
(a) an
application for an order that the sum be paid may be made to an appropriate
judicial officer —
(i)
by the Director of Public Prosecutions where the court
before which the accused failed to appear was —
(I) the District Court, the Supreme Court
or the Court of Appeal; or
(II) another court, if
the Director of Public Prosecutions is the prosecutor in that court of the
case against the accused;
or
(ii)
in other cases, by the State Solicitor or the registrar
of the court before which the accused failed to appear;
[(b) deleted]
(c) on
the hearing of the application and upon proof of the surety’s liability
in terms of his undertaking, the judicial officer shall order forfeiture of
the full amount specified in the undertaking unless the surety attends at the
hearing and shows to the satisfaction of the judicial officer that there was
reasonable cause for the failure of the accused to comply with the requirement
to which the application relates;
(d)
notwithstanding paragraph (c), the judicial officer may decline to make an
order under that paragraph or may order forfeiture in part only where the
surety attends and shows to the satisfaction of the judicial officer —
(i)
that, by reason of a change of circumstances since the
undertaking was entered into, an order for forfeiture, or for forfeiture in
full (as the case may be), would cause excessive hardship to the surety or his
dependants; and
(ii)
that such hardship would not be relieved by the exercise
of one or more of the powers conferred by section 59;
(e) an
order may be made under this section whether or not the accused has been
convicted of an offence against section 51(1) or (2) but if, after an order
has been made, the surety satisfies the Governor that new facts have been
discovered or new circumstances have arisen which show that there was
reasonable cause for the failure of the accused as mentioned in paragraph (c),
the Governor may exercise the power in section 139 of the Sentencing Act 1995
as if the forfeiture were one to which that section applied.
(2) An application
under subsection (1) must be made, and proceedings on it are to be conducted
—
(a) in a
court of summary jurisdiction — in accordance with the regulations;
(b) in
the Supreme Court or the District Court — in accordance with rules of
court.
(3) Without prejudice
to the recovery of such an amount as a civil debt due to the State, any amount
to be paid under an order made under this section is to be paid, and its
payment may be enforced under Part 5 of the
Fines, Penalties and Infringement Notices Enforcement Act 1994 , unless an
order has been made under subsection (4).
(4) If under this
section the Supreme Court or the District Court makes an order requiring the
payment of money, the court may make an order under section 59 of the
Sentencing Act 1995 in respect of the amount payable and for that purpose that
section, with any necessary changes, applies as if the amount were a fine
imposed on the surety.
[Section 49 amended: No. 74 of 1984 s. 17; No. 92
of 1994 s. 5; No. 78 of 1995 s. 8; No. 65 of 2003 s. 121(3); No. 74 of 2003
s. 29; No. 59 of 2004 s. 141; No. 84 of 2004 s. 8, 11 and 82; No. 6 of 2008 s.
18(2) and 30(1) and (2).]