IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: A 121/10

In the matter between:

and

JUDGMENT DELIVERED ON 23 MARCH 2010

OLIVIER AJ

1.	The appellant is 41 years of age. He was arrested on 22 January 2010. The State alleges that he was found with 50 - 60 000 mandrax tablets and one kilogram of heroin. He faces, together with his co-accused - one Jacobs, a charge of contravening section 5(b), read with sections 1, 13, 17 to 25 and 64 of the Drugs and Drug Trafficking Act, no 140 of 1992, that is that they were dealing in drugs.

3.	After evidence had been led judgment was given on 12 February 2010 in terms of which bail was refused.
4.	The matter was dealt with as a schedule 6 offence as it was common cause that the appellant, whilst he was released on bail in respect of an offence referred to in schedule 5, committed the current offence which is also referred to in schedule 5. Mr van der Berg, who appeared for the appellant at the hearing and who appeared in the appeal, conceded that the matter was appropriately dealt with in these terms. Mr de Jongh, who appeared for the respondent, shared this view.
5.	Section 60(11)(a) of the Criminal Procedure Act 51 of 1977 provides that:

"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 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.	The issue for determination before the learned Magistrate was whether or not there were exceptional circumstances present which in the interests of justice permitted the appellant's release on bail.

"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."

'Section 60(ll)(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. What is of importance is that the grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted.'"

cumulative effect of such circumstances cumulatively constituted exceptional circumstances which in the interests of justice permits his release;
(b)	That the magistrate erred in overemphasising the strength of the State case;
(c)	That the magistrate misdirected himself in failing altogether to consider whether bail coupled with appropriate conditions might permit the appellant's release.

18.	The appeal is brought in terms of section 65 of the Criminal Procedure Act. Section 65(4) provides as follows:

"The court or Judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court 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."

.....

20.        I propose dealing with the present appeal as held by Binns-Ward AJ.

22	.Mr van der Berg also pointed out that in terms of section 60(11 B)(a) the record of the bail proceedings is part of the record of the trial, whilst, at the bail stage, the accused would not be permitted insight into the docket. He was therefore hamstrung in his decision as to whether he could or should enter into the merits of the case against him. I am not satisfied that Mr van der Berg is correct on either score.

"Therefore, notwithstanding the provisions of subsection (14), a prosecutor may have to be ordered by the court, under subsection (11), to lift the veil in order to afford the arrestee the reasonable opportunity prescribed there..."

25.	The appellant, in my view, had to decide whether he would enter the arena and dispute the strength of the case against him – he elected not do so. That is his right, but in the absence of evidence to the contrary, regard must be had to the evidence of inspector May to the effect that the case against the appellant is very strong.

27.	Mr van der Berg submitted that, indeed, this was a case where the cumulative effect of the ordinary circumstances was such that they constituted exceptional circumstances which permitted the appellant's release.

28.	Mr van der Berg submitted that the cumulative effect of the following factors constituted the exceptional circumstances which the learned magistrate ought to have found, and which he had erred in not finding. In making his submissions Mr van der Berg carefully dissected the provisions of section 60(4) of the Criminal Procedure Act.

(a)	First that the there was no evidence that there was a likelihood that the appellant would endanger the safety of the public or would commit a Schedule 1 offence.
(b)	Second, there was no evidence that the appellant would attempt to evade his trial.
(c)	Third, there was no evidence, nor was it the State's case that the appellant would influence or intimidate State witnesses, conceal or destroy evidence.

29.	With regard to Section 60(4)(a) of the Criminal Procedure Act, section 60(5) sets out a number of factors which a court may take into account in considering whether subsection (4)(a) has been established. Mr van der Berg submitted that only the following of these factors may be of relevance:

(b)	Second, any evidence of the appellant having previously

should be taken into account.

31.	I am satisfied that the learned Magistrate had correctly had regard to the prevalence of type of offence.

34.	In my view, the fact of the previous arrest and charge of the appellant for possession of 1 kilogram heroin is a factor which is very relevant in the present case. Precisely because of this charge Schedule 6 found application. It would, in my view, also be a relevant factor under section 60(5)(h).

37.	I accept the argument advanced by Mr van der Berg that whenever a person has been arrested on a charge in consequence of which he faces the prospect of punishment which may be severe and which may even consist of a term of imprisonment, the risk of abscondment will be ever present. In the instant case this risk already arose on the first arrest - and nonetheless the appellant was granted bail. The risk, however, in my view, increased greatly with the second arrest. As will be set out below, the strength of the State case plays an important role here - the stronger the case, the stronger the incentive to abscond.

39.	The evidence was that the appellant had misled the investigating officer regarding his current residential address. It was only when it was insisted that he takes them to the address where the remote control for a gate could be operated that he took them to his wife's home. It was there that they found the passport in a safe - a fact which was not previously disclosed. These factors both permit inferences to be drawn that there is a risk of flight and that the appellant was not open about his situation.

41. 	The appellant previously undermined the proper functioning of the criminal justice system. He was released on bail for a similar offence and whilst released on bail committed a similar offence. He clearly showed that, if released on bail, he still has the means to continue dealing in dangerous dependence-producing substances. The two previous convictions for similar offences do not weigh that heavily as the convictions were a long time ago. Nevertheless there is a real likelihood that the appellant, if he were released on bail, will continue with his illegal activities, as is evident from his more recent conduct, and will thus endanger the safety of the public or commit further offences.

suffer as a result of his incarceration. The evidence was that though he conducted the business of a tavern, he did so without having a liquor license.

bail conditions might permit his release on bail. The imposition of appropriate bail conditions will not provide effective safeguards and will have no binding effect on the appellant, as is evident from his past conduct. It did not previously deter him. He clearly has a propensity to commit this type of crime. He was released on bail for a similar offence and abused this position by committing this offence. It is therefore likely that he will commit a similar offence.
44.	
45.	
The appeal is accordingly dismissed and the order of the Magistrate refusing bail is confirmed.