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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA MPUMALANGA DIVISION

[FUNCTIONING AS THE GAUTENG DIVISION MBOMBELA]

 

BAIL APPEAL: A 28/2018

(1)     REPORTABLE: YES / NO

(2)     OF INTEREST TO OTHER JUDGES: YES/NO

(3)     REVISED : YES

DATE: 1 June 2018

SIGNATURE: H.C. Jansen van Rensburg

 

In the matter between:            

 

BUSISIWE PROMISE NKOSI                                                       APPELLANT

 

And

 

THE STATE                                                                                  RESPONDENT

 

JUDGMENT: BAIL APPEAL

 

 

JANSEN VAN RENSBURG AJ

 

1.

INTRODUCTION

 

1.1.       The appellant stand to be charged with murder, attempted murder, robbery and kidnapping.

 

1.2.       It seems that the charges against the appellant was withdrawn and later on 22 May 2017, re-instated.

 

See page 13 of the record.

 

1.3.       The formal bail application was set down for 23 June 2017 which proceeded until 27 September 2017.

 

1.4.       Granting of bail to the appellant was denied by the court a quo.

 

1.5.       The appellant then brought this bail appeal before this court.

 

2.

 

EVIDENCE BY THE STATE

 

2.1.      The State called constable Ndaba to testify in this bail application in the court a quo.

 

2.2.     The greater part of his evidence was against the other two suspects in the matter that were dealt with in the Magistrates Court for the District of Mukaligwa held at Ermelo.  

 

2.3.     From the evidence by the witness, it was suggested that there was a confession by one of the suspects, some information by a traditional healer and some 500 pages of SMS messages which points at the involvement of the appellant in the committing of the crimes she stand charged with.

 

2.4.      Some references were made to petitions and requests by the community in this regard as to demand that the appellant should not be released on bail.

 

3.

 

THE APPELLANT’S CASE

3.1.      The appellant is a single mother and reside at [...] C[...] Street Flat 1[...] [...].

 

3.2.     The appellant was 30 years of age at the time of her arrest [she is now nearly 32 years of age] and was employed by TRANSNET as a shunt assistant. She earned R 17 000 – 00 per month. She was the only breadwinner in the family.

 

3.3.     The appellant have two minor children, now presumably 5 years of age and the other 2 years of age. At the time of the application for bail in the court a quo, the youngest child was 10 months old and still breastfeeding.

 

3.4.      The appellant has no travel documents.   

 

3.5.     The appellant was first arrested on 31 December 2016 and released on 3 January 2017. She was re-arrested on 19 May 2017 and in custody ever since.

 

3.6.     The appellant handed in an affidavit during the bail application in the court a quo in which her details and circumstances were explained.   

 

4.

 

THE PRINCIPLES OF AN APPLICATION FOR BAIL

 

4.1.  The pinnacle of an application for bail where serious offences has been  committed lies in the interpretation of the requirements of schedule 5 and 6 of the CPA 51 of 1977.

 

4.2.   Depending on whether the offences are classified under section 5 or 6, the onus of prove will shift. Where the alleged offence falls under schedule 6, the burden of proof would rest on the accused to show ‘exceptional circumstances’ why he or she should be granted bail.

 

4.3.     An application for bail in an ‘enquiry to the circumstances’ and not a formal trial; the merit of the case has to be determined by a trial court. A court hearing an application for bail is not in a position to give a judgment and to sentence the convicted person in any manner.

 

4.3.1.   What a court in an application for bail must do is to determine the release or not of the detained person and the factors considered in its evaluation and conclusion thereof.

 

4.3.2.   It is expected of a court in this position to focus on the factors, the circumstances, the evidence [whether hearsay or not] before it and to apply its mind within the discretion of that court to grant or refuse bail.

 

4.3.3.  In a bail application, the inquiry is not really concerned with the question of guilt. That is the task of the trial court.  The court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear on where the ‘interests of justice’ lie in regard to bail.

 

4.3.4.  In all cases involving bail applications, the courts are guided by certain considerations and factors in assessing the promotion of the interests of justice and the protection of the right of the individual. In doing so the court should not be allowed to be influenced and replaced by the legislative guidelines or the sentiment of the community and the public. These factors do not relieve the judicial officer of applying his or her mind to all the relevant facts and making an appropriate determination and thereby bridging the gulf between ‘positivism and rationality’.

 

4.3.5.  In all other criminal charges the person deemed to be ‘innocent until proven guilty beyond reasonable doubt’. In the case where the first bail application fails, the applicant may in terms of section 65 of the CPA 51 of 1977, appeal to the High Court in the normal appeal procedure to be heard a second time.

 

4.3.6.  Section 65(4) prescribes that the High Court may not overrule the judgment of the court a quo unless the court a quo has misdirected itself in the dismissal of the bail or any other relevant matter thereto. The question is whether the court a quo has misdirected itself?  ^[1] The only opportunity where a High Court could rescind the bail proceedings in the lower courts is based where a finding that the court a quo has misdirected itself in the bail application in that court. ^[2]

 

4.3.7.  The aim of the bail application or bail appeal is to secure the freedom of the applicant on the one side and the weight of the case of the state on the other side with reference to section 60(6) (g) of the CPA 51 of 1977. The state’s case cannot be classified as ‘relatively strong’ as this would then implicate that all the states cases would inevitably be ‘relatively strong’. Even where the state’s case is weak, it does not mean that the case cannot be turned around in some form or in certain circumstances.

 

4.3.8.  What this means is that an applicant can be successful in an application for bail, but during the trial, the applicant can be convicted on the evidence before the trial court. ^[3] This is not the duty of the court in a bail application.    

 

5.

 

THE AIM OF BAIL

 

5.1.      The aim of bail is envisaged by the Bill of Rights in the Constitution of the Republic of South Africa Act 108 of 1996 being the following –

 

5.1.1.  The right to be presumed to be innocent until proven guilty. [4]

 

5.1.2.  The right to enjoy the freedom of the body and not to unlawfully be arrested and detained.

 

5.3.       In the case of S v Barber ^[5]  Hefer J held in this regard –

 

‘It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion, which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that, no matter what this Court’s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.’ ^[6]

 

In the matter of Porthen [7] Binns-Ward AJ expressed the view that interference on appeal was not confined to misdirection in the exercise of discretion in the narrow sense. The court hearing the appeal should be at liberty to undertake its own analysis of the evidence in considering whether the appellant has discharged the onus resting upon him or her in terms of section 60(11)(a) of the Act.

 

5.4.       Following the dismissal of the application for bail by the court a quo, another application for bail came before the Court of Appeal in terms of section 65(4) of the Act. The section reads as follows –

 

‘The Court or Judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such Court or Judge is satisfied that the decision was wrong, in which event the Court or Judge shall give the decision which in its opinion the lower court should have given.’

 

5.5.       As indicated this court may only intervene if the court a quo has misdirected itself with the application for bail and the evidence in that court.

 

5.6.       Reading the record and the summary by the State and the appellant it is this court’s view that bail should have been granted to the appellant by the court a quo. The refusal of bail by the court a quo was detrimental to the administration of justice and an unfair act against the appellant.

 

5.7.       Section 12 read with section 35(1)(f) of the Constitution of the Republic of South Africa Act 108 of 1996 guarantees the freedom of movement of any person, so also the presumption of innocence until proven guilty. A trial court will determine the guilt or not of an accused.

 

5.8.       Fairness and the interest of justice should form the cornerstones whereby bail is evaluated read with the misinterpretation of the schedule under which the appellant stand to be charged [Schedule 5 as indicated in the record of the bail application in the court a quo].      

 

5.9.       It is the discretion of a court to grant or refuse bail. However this discretion must be exercised fairly, with due diligence and being motivated.

 

5.10.    This court is satisfied that the sub-sections of section 60 of the CPA 51 of 1977 [60(4) (a) – (e), 60(6), 60(8A) and 60(9)] would not have any negative effect on any criminal trial which stand to be instituted, if any, against the appellant in a court of law.

 

6.

 

6.1.       In terms of section 60(11) (a) of the CPA 51 of 1977, the applicant has to proof ‘exceptional circumstances’ before bail could be granted. The ‘onus to proof’ these circumstances are difficult and it takes time to put the circumstances in place. The state or prosecution has the benefit to object to the granting of bail by merely denying bail on little but none excuses – it only needs to create the doubt in the mind of the court to be successful in the opposing the granting of bail. 

 

6.2.       In the case where the first bail application fails, the applicant may in terms of section 65 of the CPA 51 of 1977, appeal to the High Court in the normal appeal procedure to be heard a second time –

 

6.2.1.   Section 65(4) of the CPA 51 of 1977 prescribes that the High Court may not overrule the judgment of the court a quo unless the court a quo has misdirected itself in the dismissal of the bail or any other relevant matter thereto. The question is whether the court a quo has misdirected itself?  ^[8]

6.2.2.   The High Court can only rescind the bail proceedings in the lower courts if the court a quo has misdirected itself in the bail application in that court. ^[9]

 

6.2.3.   The CPA 51 of 1977 has given Magistrates broader power to grant or decline bail in terms of section 65(4) of the CPA 51 of 1977 and for this reason, the High Court will not just merely intervene in the procedures of the court a quo.

 

6.2.4.   An appeal to the High Court re bail and that of a normal criminal appeal is no different from each other. ^[10]  Where the appeal is against the dismissal of a bail application in the lower courts, the High Court is bound to the interpretation of the appeal in the ‘narrow sense’. This means that the High Court is bound by and to the proceedings in the court a quo unless the court a quo has misdirected itself. 

 

6.3.       A good example of the conflict between the state and the applicant re ‘exceptional circumstances’ is found in the matter of S v Botha and another supra. At the end of the analysis of all the factors of the application, the court must take into consideration the factors depicted in section 60(11)(a) of the CPA 51 of 1977.The court must thereafter make a finding and come to a conclusion whether the court a quo has misdirected itself or that the court a quo has given the correct order.

 

6.4.       The personal factors of the appellant must be ‘unusual’ or such as singly or together warrant the release of the appellant in the interest of justice.  The requirements of section 60(4) must establish any of those grounds, without the addition of facts that add weight to his ipse dixit.

 

7.

 

THE JUDGMENT BY THE COURT A QUO

 

7.1.      The court a quo has given a thorough judgment on this specific application for bail by the appellant.

 

7.2.      The Bill of Rights in the Constitution of the Republic of South Africa Act 108 of 1996 guarantees  the following –

 

7.2.1.         The right to be presumed to be innocent until proven guilty. [11]

 

7.2.2.         The right to enjoy the freedom of the body and not to unlawfully be arrested and detained.

 

7.3.      Section 60(11) (a) of the CPA 51 of 1977 reads as follows –

 

‘Notwithstanding any provision of this Act, where an accused is charged with an offence referred to –

 

(a)  In Schedule 6, the court shall order that the accused be detained in

 

(b)  custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release …’

 

7.4.     Generally speaking the meaning of the phrase ‘exceptional’ is indicative of something ‘unusual, extraordinary, remarkable, peculiar or simply different’. In practice one experience that there are varying degrees of ‘exceptionality, unusualness, extra-ordinariness, remarkableness, peculiarity or difference’. The interpretation and application would depend on its context and on the particular circumstances of the case under consideration. Bail is only granted where the accused could ‘proof’ the existence of ‘exceptional circumstances’ [schedule 5 and 6 offences].

 

7.5.     In the context of section 60(11)(a) of the CPA 51 of 1977 the ‘exceptionality of the circumstances’ must be such as to persuade a court that it would be in the ‘interests of justice’ to order the release of the accused person. This may, of course, mean different things to different people, so that allowance should be made for a certain measure of flexibility in the judicial approach to the question.

 

7.6.     In determining the concept of ‘exceptional circumstances’ the case of S v Botha en ‘n Ander [12] could be analysed in this regard. In this case, the SCA named the factors to determine the existence of ‘exceptional circumstances’. This case dealt with the application of the remainder of the accused to be released on bail –

 

7.6.1.     Section 65A(2) of the CPA 51 of 1977 read with section 21(1) of the High Court Act 59 of 1959 [the old act] made provision for an appeal against the denial of bail by a court a quo. [13]

 

7.6.2.     Sections 316 read with section 65A (2) (b) of the CPA 51 of 1977 made provision for ‘leave to appeal’ in such instance.

 

7.6.3.     Section 35(1) (f) of the Constitution guarantees the freedom of a person if it is in ‘the interest of justice’. This Constitutional right could be limited in ‘exceptional circumstances’ [14] by the limitation clause in section 36.

 

7.6.4.     The requirements for ‘exceptional circumstances’ include the balance of the requirements of section 60(4) - (9) to be evaluated against the rights to freedom, the effect of the release in the ‘interest and administration of justice’. 

 

7.6.5.     To deny the probabilities of events in section 60(4) (a) - (e) is not enough.

 

7.6.6.     Section 60(11) (a) does not include a list or definition of ‘exceptional circumstances’

 

7.7.    The crisp is the probability of and proof of events and circumstances envisaged in section 60(4) (a) – (e). The circumstances of the case balanced by the context thereof are important. [15]

 

7.7.1.     In terms of section  60(11)(a) en (b) the accused bear the formal proof to be released on bail and to lead evidence in this regard. The accused must prove on the ‘balance of probabilities’ that the release on bail would be based on ‘exceptional circumstances’ and secondly that the release would be in the interest of justice. There is no sequence of the evaluation of the above in determining the granting of bail or not.  

 

7.7.2.    The difference in the two subsections is that an accused charged with one of the scheduled offences, the accused must give evidence to convince the court that there are ‘exceptional circumstances’ to be released on bail.

 

7.8.    In Dlamini supra, Kriegler J held the following –

 

‘An applicant is given broad scope to establish the requisite circumstances, whether they relate to the nature of the crime, the personal circumstances of the applicant or anything else that is particularly cogent…..Under the subsection, for instance, an accused charged with a Schedule 6 offence could establish the requirement by proving that there are exceptional circumstances relating to his or her emotional condition that renders it in the interests of justice that release on bail is ordered notwithstanding the gravity of the case’.

 

7.9.        In S. v. Pienaar [16] the Court stated as follows –

 

‘..in my view, therefore, there is nothing in the Criminal Procedure Act that renders the use of affidavits in bail applications impermissible. Obviously, an affidavit would have less probable value than oral evidence which is subject to the test of cross-examination. At the same time, an affidavit wilt carries more weight than a mere statement from the Bar.’

 

8.

 

THE ANALYSIS OF THE CONCEPT OF ‘EXCEPTIONAL CIRCUM- STANCES’

8.1.    Referring to the common law, one could argue that ‘exceptional circumstances’ have overtaken the presumption of innocence. This factor has been included in bail applications as early as 1920. [17] The accused has to proof ‘exceptional circumstances’ exist to be released on bail.

 

8.2.    The court, in S v H [18], concluded that the phrase in terms of the Concise Oxford dictionary defines the phrase as being ‘ unusual or not typical’. ‘Exceptional circumstances’ would be broad enough to accommodate any relevant circumstances of the applicant. The applicant might decide to refer to ‘personal circumstances or anything which might be suitable for the application for bail’. [19]

 

8.3.    The preamble to the 1997 amendment of the CPA read as follows –

 

‘….to detain an accused in custody unless the accused satisfies the court that exceptional circumstances exist why he or she should be released’

 

8.4.      Section 60(11) (a) contains the requirements of ‘exceptional circumstances’. Schedule 6 includes three serious offences namely murder, robbery and rape committed under specific circumstances and have been included in the CLAA 105 of 1997 [the minimum sentence act] which prescribe a minimum sentence to be imposed if there are no ‘substantial and compelling circumstances’.

 

8.5.      One of the factors to be released on bail is the ‘strength of states case against the accused’. [20] The courts have not defined or described ‘exceptional circumstances’ but some indications have been given  –

 

‘..sterk, onafhanklike getuienis aanduidend van die beskuldigde se onskuld (in casu ‘n gestaafde alibi) in in S v Mohamed 1999 (2) SASC 507 (K) deur Comrie R in ‘n beredeneerde beslissing as buitengewone omstandighede soos bedoel in art 60(11) van die Wet aanvaar’

 

8.6.    A further obstacle is that the Constitution does not guarantee an absolute right to bail.  The right to bail lies in the following phrase [21] –

 

‘Everyone who is arrested for allegedly committing an offence has a right to be released from detention if the interest of justice permits, subject to reasonable conditions’

 

8.7.      The requirement of section 35(1) (f) in the Constitution included a release on bail subject to the ‘interest of justice’. The 1997 amendment included the requirement of ‘exceptional circumstances’ and has no constitutional origine or reference. The requirement ‘in the interest of justice’ includes five grounds for the refusal of bail. [22]  The argument follows that the rights of the accused are disregarded and that the amendment had the result of trials being delayed unreasonably.

 

8.8.      In the analysis of section 60 (11) (a), it is quite clear that a formal onus rests on an arrested person to satisfy the court that he or she should be released and not being kept in custody for some sinister reasons. It is required form an arrested persons to in an informal manner and not under oath, to place relevant factors before the court without any insight into the investigation and the reasons for the arrest. It is required from the arrested person to actually adduce evidence in the application for bail.

 

8.9.      The test for bail established by section 60 (11) (a) could be seen and argued as being more rigorous than that contemplated by section 35 (1) (f) of the Constitution. One could, therefore, argue that this section has a direct influence on the right to freedom of the accused. Section 60 (11) (a) does not contain an outright ban on bail in relation to certain offences but leaves the particular circumstances of each case to be considered by the presiding officer. The ability to consider the circumstances of each case affords flexibility that diminishes the overall impact of the provision. The important aspect here lies within the granting or refusal of bail which is controlled by the judiciary, and judicial offices have the ultimate decision as to whether or not, in the circumstances of a particular case to grant or refuse bail.

 

8.10.   One could well argue that the term ‘exceptional circumstances’ is so ‘vague and broad’ that an applicant for bail does not know what it is that has to be established. The applicant is given a ‘broad scope’ to establish the requisite circumstances whether it relates to the nature of the crime, the personal circumstance of the applicant or anything else that could be particularly cogent. The requirement referring to circumstances to be ‘exceptional’, the subsection does not define that the circumstances must be circumstances ‘above and beyond’ and being different from those enumerated in sub-sections (4) – (9). The evaluation is done judicially, which means that the court will look at ‘substance, not form’.

 

8.11.   The requirement of ‘exceptional circumstances’ in section 60(11) (a) limits the right enshrined in section 35 (1) (f) it is a limitation which is reasonable and justifiable in terms of section 36 of the Constitution in the current circumstances in South Africa.  The accused must be given a ‘reasonable opportunity’ to establish what the subsection requires.  

 

8.12.   Exceptional circumstances’ as a concept has not been defined thus far. The Constitutional Court declined to define it in Dlamini, but made it clear in paragraph [76] that even so-called ‘ordinary circumstances’ may serve to establish ‘exceptional circumstances’.

 

8.13.   In S v Rudolph ^[23] the court again dealt with what ‘exceptional circumstance’ are and reiterated that the applicant in a schedule 6 offence-bail application must, on a ‘balance of probability’, demonstrate that ‘exceptional circumstances’ in his or her case, indeed, do exist and that they ‘in the ‘interests of justice’ permit his release’. This, according to the court, involves the balancing ‘between the liberty interests of the accused and the interests of which’, society in denying the accused bail will be resolved in favour of the denial of bail, unless ‘exceptional circumstance is shown by the accused to exist’. The court further held the following –

 

‘Exceptional circumstances do not mean that ‘they must be circumstance above and beyond, and generally different from those enumerated’ in ss (60) (4)-(9). In fact, ordinary circumstances present to an exceptional degree may lead to a finding that release on bail is justified’.

 

8.14.   There is no ‘onus’ on the state to disprove ‘exceptional circumstances’.  The accused must on a ‘balance of probabilities’ prove that the State’s case was non-existent or subject to serious doubt. [24]  In S v Petersen [25]  the Full Bench concluded as follows on the meaning and interpretation of ‘exceptional circumstances’ –

 

‘Generally speaking 'exceptional' is indicative of something unusual, extraordinary, remarkable, peculiar or simply different…  This may, of course, mean different things to different people (exceptional circumstances), so that allowance should be made for a certain measure of flexibility in the judicial approach to the question….in essence the court will be exercising a value judgment in accordance with all the relevant facts and circumstances, and with reference to all the applicable legal criteria.’

 

8.15.   An accused that alleges innocence and claims that he will ultimately be acquitted, must prove his future acquittal on a ‘balance of probabilities’. [26] Van der Berg loc cit [27] regards this as an ‘outrageous onus’.  Where an accused, confronted with allegations that he has committed a schedule 6 offence, does not make out a prima facie case of the prosecution failing, there is no duty on the prosecution to present evidence in rebuttal. [28]

 

8.16.   The issue to be determined is ‘whether the appellant has discharged the burden which rests on him in terms of section 60 (11) (a) of the CPA for him to be admitted to bail’. The question which immediately springs to mind is as to what these ‘exceptional circumstances’ are? In S v Bruintjies [29] Shongwe AJA held the following –

 

‘…what is required is that the court considers all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release. What is exceptional cannot be defined in isolation from the relevant facts, save to say that the legislature clearly had in mind circumstances which remove the applicant from the ordinary run and which serve at least to mitigate the serious limitation of freedom which the legislature has attached to the commission of a schedule 6 offence”.

 

8.17.       In S v Dlamini; S v Dladla and Others; S v Joubert, S v Schietekat [30]  Kriegler J said the following with regard to ‘exceptional circumstances’ –

 

‘An applicant is given broad scope to establish the requisite circumstances, whether they relate to the nature of the crime, the personal circumstances of the applicant or anything else that is particularly cogent.... In requiring that the circumstances proved to be exceptional, the subsection does not say they must be circumstances above and beyond and generically different from those enumerated. Under the subsection, for instance, an accused charged with a Schedule 6 offence could establish the requirement by proving that there are exceptional circumstances relating to his or her emotional condition that renders it in the interest of justice that release on bail is ordered notwithstanding the gravity of the case.’

 

8.18.       In S v Scott-Crossley [31] the court stated that an accused’s personal circumstances which are common do not necessarily constitute ‘exceptional circumstances’ for the purposes of section 60(11)(a). Even where the case against the appellant was weak and non-existent it would not necessarily result in the granting of bail.

 

8.19.   Section 35 (1) (f) of the Constitution itself places a limitation on the rights of liberty, dignity, and freedom of movement of the individual. In the evaluation of the application for bail, the arrested person does not have a totally ‘untrammelled right’ to be set free more pertinently than in the past. A court is now obliged by section 60 (2) (c), (3) and (10) to play a ‘pro-active role’ and assisted in this by sub-sections (4) – (9). It is expected that the court would apply its mind to all the factors potentially in favour of or against the granting of bail.

 

8.20.    Section 35(1) (f) presupposes a deprivation of freedom by the arrest that is constitutional. This deprivation is for the limited purpose of ensuring that the arrested person is duly and fairly tried. In the analysis of section 35(1)(f), one finds no expressed nor impliedly requirements which stand to be considered whether the ‘interests of justice’ permit the release of that detainee pending trial, only trial-related factors are to be taken into account. On the question whether or not an accused should, in the ‘interests of justice’, be released on bail, section 60(4) of the Act furnishes five grounds of which the existence of one or more of which would preclude such release. One of the grounds to decline bail is cited in section 60(4) (b) –

 

…..‘Where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial’.

 

8.21.  Section 60(6) emphasise a number of factors which a court may take into account in this regard, including ‘any other factor which in the opinion of the court should be taken into account’. [32] It must be bore in mind that the final decision whether not grant bail is in the hands and the discretion of the court.   Should the applicant not disclose such information, the court will inform the applicant of the result thereof. [33] The accused does have the ‘onus of proof’ in bail applications in ‘exceptional circumstances’. ^[34] The Constitutional court has ruled that section 36 of the Constitution could restrict the movement and freedom of an accused. Kriegler J held the following –

 

‘An applicant is given the broad scope to establish the requisite circumstances whether they relate to the nature of the crime, the personal circumstances of the applicant or anything else that is particularly cogent … The accused charged with a Schedule 6 offence, could establish the requirement by providing that there are exceptional circumstances ……… to his emotional condition that render the interest of justice the release on bail be ordered notwithstanding the gravity of the case in both sections 60(11)(a) and (b) there is a formal duty to prove the contrary’. ^[35]

 

8.22.  ‘Exceptional circumstances’ does not include the requirements as per section 60(4) to (9). Other circumstances should be proven excluding those in section 60(4) (a) to (e). ^[36] In applying the principles and requirements of section 60(11) (a) of the CPA 51 of 1977, one needs to refer to the contents of this section. In the analysis of the above section, the following are of importance –

 

8.22.1.       The ‘onus of proof’ is on the accused to adduce evidence, and hence to prove to the satisfaction of the court, the existence of ‘exceptional circumstances’ of such a nature as to permit his or her release on bail.

 

8.22.2.       The court must also be satisfied that the release of the accused is in the ‘interests of justice’.

 

8.22.3.       On the meaning and interpretation of ‘exceptional circumstances’ in this context, there have been wide-ranging opinions, from which it appears that it may be unwise to attempt a definition of this concept.

 

8.22.4.       Generally speaking ‘exceptional’ is indicative of something unusual, extraordinary, remarkable, peculiar or simply different. There are, of course, varying degrees of ‘exceptionality, unusualness, extraordinariness, remarkableness, peculiarity or difference’.

 

8.22.5.       These factors depend on their context and on the particular circumstances of the case under consideration.

 

8.22.6.       In the context of section 60(11) (a) the ‘exceptionality of the circum- stances’ must be such as to persuade a court that it would be in the interests of justice to order the release of the accused person. This may, of course, mean different things to different people, so that allowance should be made for a certain measure of ‘flexibility in the judicial approach’ to the question. 

 

8.23.          In essence, the court will be exercising a value judgment in accordance with all the relevant facts and circumstances, and with reference to all the applicable legal criteria. ^[37]

 

9.

CONCLUSION

9.1.      The court a quo has dealt with the circumstances and the evidence presented in the appellant's bail application before that court.

 

9.2.    In the case of S v Barber ^[38]  Hefer J held in this regard –

 

‘It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion, which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that, no matter what this Court’s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.’ ^[39]

 

9.3.    Following the dismissal of the application for bail by the court a quo, another application for bail [bail appeal] came before this court in terms of section 65(4) of the CPA 51 of 1977. The section reads as follows –

 

‘The Court or Judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such Court or Judge is satisfied that the decision was wrong, in which event the Court or Judge shall give the decision which in its opinion the lower court should have given.’

 

9.4.      As indicated this court may only intervene if the court a quo has grossly misdirected itself with the application for bail and the evidence in that court. However, the reading of the record of the application for bail in the court a quo together with the evidence by the State and the address by the parties in the court a quo, this court is of the view that the appellant failed to adduce evidence to be released on bail. This view must be read with the requirements put to the appellant to prove or provide ‘exceptional circumstances’ read with schedule 6 of the CPA 51 of 1977, to be released on bail.

 

9.5.     This court is of the view that the appellant should have been granted bail in the light of the scant evidence produced by the Investigation Officer in the appellant’s bail application in the court a quo.

 

9.6.     The circumstances of the appellant is of such a nature that she does not fall within the categories of suspects, should she be released on bail, that would cause the public to lose faith in the criminal justice system or that her release would negatively affect the administration of justice.

 

9.7.     This court is mindful of the seriousness of the charges that the appellant might face but this court is of the view that the interest of justice lies in the granting of bail to the appellant with conditions set by this court which would be fair and just.   

 

10.

 

ORDER

 

The following order is made –

 

1.            The appellant’s bail appeal against the refusal of bail by the court a quo is upheld.

 

2.            The appellant’s bail conditions are as follows –

 

a.            Bail amount is set at R 4000 – 00.

 

b.            The appellant is ordered to report at the ERMELO SAPS on each consecutive Thursdays between 08:00 am to 18:00 pm as from the date of release on bail until the finalisation or withdrawal of any further criminal proceedings in this matter against the appellant.

 

c.            The appellant is ordered to attend every court day on which the matter is heard, a failure which would result in a warrant of arrest being issued for the arrest of the appellant.

 

d.            The appellant is ordered not to threaten or to engage with any state witnesses in this matter, to tamper with evidence, engage in any communication with any state witnesses in anyway whatsoever.

 

e.            The appellant is ordered not to engage in any action which would jeopardise the investigation of the charges in this matter against the appellant, if any, by the SAPS in this regard. 

 

f.             The appellant has to hand in her passport [if applicable] to the Investigation Officer within 7 days of this order being granted

 

 

H.C. JANSEN VAN RENSBURG

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

DATE OF HEARING :	1 JUNE 2018
DATE OF JUDGMENT :	1 JUNE 2018
COUNSEL FOR THE APPELLANT :	ADV N.J. DU PLESSIS
INSTRUCTED BY :	D GAMA ATTORNEYS NELSPRUIT
COUNSEL FOR THE STATE :	DPP NELSPRUIT

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