The Appellant was arrested, alongside two other men, on charges of robbery with aggravating circumstances, the unlawful possession of firearms and being in possession of property that was suspected of being stolen. The Appellant applied in the Magistrates court, Fort Beaufort, to be released on bail, which application was denied as it was ruled that the Appellant did not discharge the onus that lay with him to show exceptional circumstances justifying his release on bail in terms of section 60(11)(a) of the Criminal Procedure Act 51 of 1977 (the Act). In terms of the section, an accused may only be released on bail if he adduces evidence that satisfies the court that exceptional circumstances exist which will permit the accused’s release on bail in the interests of justice.
In determining the appeal, the Court deliberated on the facts of the case, being that on 1 May 2018, Fidelity Guards personnel were robbed by a number of men with firearms. A total of five cannisters containing R200 000.00 in cash and two firearms were stolen. The beforementioned men made off in a Renault Clio motor vehicle, and subsequently moved the stolen items to a white Toyota Avanza motor vehicle, which is owned by the First Accused. The accused then drove to the Appellant’s home, which was subsequently raided by the police. The Appellant and Accused attempted to run away but were stopped by the police.
Upon searching the Appellant’s home, the police found the cannisters with approximately R57 000, four fire arms (two of which had been stolen from the Fidelity Guards personnel) and R800.00 in new sequential bank notes in the underwear of the second Accused.
The Appellant did not testify orally at the bail hearing and instead filed an affidavit in which he undertook not to prejudice the case in any way and to attend trial. He further set out his personal circumstances, justifying why he should be released on bail. Although the investigating officer testified and was cross examined, the Appellant’s evidence was not tested through cross examination. Accordingly, the Magistrate presiding over the bail hearing placed less weight on the evidence of the Appellant than she would have had he testified orally and been cross examined.
The Court held that in terms of section 65(4) of the Act, a judge hearing a bail appeal may only set aside the decision appealed against if he/she is satisfied that the decision was wrong. Accordingly, the Court concluded that the Appellant had not adduced sufficient evidence to satisfy the Magistrate that exceptional circumstances existed to justify his release on bail.
The argument of the Appellant, that the Magistrate did not enquire into the interests of the Appellants minor child was not supported by the Court. Although the Court agreed that the aforementioned would be a factor in the granting of the bail, due to the fact that other factors overwhelmingly led against the granting of bail, it was noted that the outcome must remain the same. Accordingly, the Court ordered that the appeal be dismissed.
This case looks at factors that are relevant in the determination of bail in a matter where there are aggravating circumstances. The case also looks at how much weight is given to evidence adduced by an accused where he/she does not testify to the evidence so adduced.
Written by Lauren Squier and supervised by Musa Mathebula, 30 July 2018