Brief Summary

Bail — Amendment of bail conditions — Application for amendment of bail conditions by accused charged with serious offences — Accused seeking to amend conditions to allow international travel for employment — Court's discretion to amend conditions based on the interest of justice — Onus on applicant to demonstrate that amendment serves the interest of justice — Application granted with specific conditions to ensure compliance and monitoring.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings took the form of an application on motion in the Western Cape High Court, Cape Town, for the amendment of bail conditions in terms of section 63(1) of the Criminal Procedure Act 51 of 1977 (CPA). The applicant was Mr Mark Lifman, an accused person awaiting trial, and the respondent was the State, which opposed the application.

The bail conditions sought to be amended had originally been imposed by the Cape Town Magistrate’s Court on 22 December 2020 when the applicant was granted bail on Schedule 6 charges. The matter later came before the High Court because the criminal proceedings had been transferred to the High Court for trial and were being case-managed at the pre-trial stage. The application was argued as an urgent application on 5 October 2021, and judgment was delivered on 19 November 2021 after the court requested additional information from both parties.

The general subject-matter of the dispute was whether, given alleged changed circumstances, the applicant should be permitted to have his passport returned and to travel and reside outside South Africa (principally in Turkey) while awaiting trial, subject to proposed supervisory and reporting conditions.

Material Facts

The applicant was arrested on 22 December 2020 after surrendering himself at SAPS Cape Town upon learning that a warrant for his arrest had been issued. The warrant reflected charges including murder and conspiracy to commit murder, allegedly committed between May 2017 and August 2017 in Cape Town. It was common cause that these alleged offences fell under Schedule 6 of the CPA, with the result that bail required compliance with section 60(11)(a) (exceptional circumstances justifying release in the interests of justice). Bail was granted in the amount of R100,000, on conditions including attendance at court, surrender of his passport to the Hawks, and weekly reporting to Sea Point SAPS.

The criminal proceedings were later transferred to the High Court and placed under pre-trial management, with a first pre-trial hearing having occurred on 6 August 2021. At the time of this application, the matter remained at the pre-trial stage and no trial date had been set.

During May 2021 the State amended the indictment by adding six further charges, bringing the total to nine charges, including allegations of contraventions of the Prevention of Organised Crime Act 121 of 1998 (POCA). The judgment treated the increase in the number and seriousness of charges as part of the contextual matrix relevant to the bail-condition amendment inquiry.

After the indictment was amended, the applicant initially pursued a section 63(1) application in the magistrates’ court, but it was not heard because, by then, the criminal proceedings had been transferred to the High Court and the magistrates’ court no longer had jurisdiction. The application was accordingly relaunched in the High Court.

The applicant’s asserted change in circumstances was an offer of employment connected to a Turkey-based company, Cisiy Textiles in Bursa, Turkey, requiring him to take up employment there and (initially) to travel extensively internationally. He contended that, although he could travel within South Africa, the condition requiring surrender of his passport prevented him from taking up this opportunity.

The applicant sought amendments that, in substance, would permit international travel and provide the investigating officer with contact, address, itinerary, and advance notice information. During argument further conditions were proposed, including reporting to the investigating officer by WhatsApp/video call while abroad, reporting to the South African Honorary Consul in Istanbul weekly, and limiting travel to Dubai with reporting to the South African Embassy there.

The judgment accepted as a fact that the applicant had complied with his existing bail conditions since being released. The State’s prior position that the applicant was regarded as a flight risk, and that surrender of the passport was imposed to address that concern, was treated as not in dispute.

The court also recorded that the State indicated it was experiencing difficulty in securing extradition from Turkey in relation to another implicated person (Mr Naidoo). Although the court did not attach value to the allegation of an association between the applicant and that person, it treated the difficulty in obtaining Turkish cooperation as illustrating a factual risk relevant to the feasibility of permitting relocation to Turkey pending trial.

Legal Issues

The central legal question was whether the applicant had made out a case under section 63(1) of the CPA for the amendment or supplementation of bail conditions, specifically whether it would be in the interests of justice to alter the existing conditions so as to permit the applicant to travel internationally and temporarily reside in Turkey pending finalisation of the criminal proceedings.

A further issue concerned the applicable approach to onus in a section 63(1) amendment application, as distinguished from a bail application seeking initial release. This raised a question of law and the correct characterisation of the evidentiary burden in this particular statutory setting.

The dispute also implicated the proper application of statutory factors relevant to bail (particularly flight risk concerns), which required the court to make a value judgment and to exercise a judicial discretion by balancing the accused’s interests against the public interest and the administration of justice.

Finally, the court addressed how far it was bound by S v Savoi 2012 (1) SACR 438 (SCA), and whether that decision compelled a similar result on the basis of factual similarity and stare decisis. This was treated as a question of legal method (ratio decidendi and factual distinguishability).

Court’s Reasoning

The court began by setting out the statutory framework governing bail conditions and their amendment. It noted that section 60(12) of the CPA empowers a bail court to attach conditions to release on bail that are, in the court’s opinion, in the interests of justice, and that section 62 regulates bail conditions aimed at addressing the State’s fears concerning release. The court referred to jurisprudence stating that bail conditions are governed by principles including that conditions may not be contra bonos mores, may not be vague or ambiguous, may not be unlawful, and must be practically feasible, with feasibility linked to whether the police can sufficiently closely supervise an accused.

Turning to section 63(1), the court treated it as the mechanism permitting an accused to approach the court before which the charge is pending to seek amendment or supplementation of conditions previously imposed. The court reasoned that the primary inquiry on a section 63(1) application is whether amendment is in the interests of justice, as reflected in the language and structure of section 60(12) and as echoed in S v Savoi 2012 (1) SACR 438 (SCA).

In determining what the interests of justice required, the court emphasised that the inquiry entails an exercise of judicial discretion in the form of a value judgment balancing the rights of the accused against the interests of the public. It held that, in performing this balancing exercise, the court may be guided by the factors listed in section 60(4) (and elaborated in sections 60(5) to 60(9)), and it identified sections 60(4)(b) and 60(6) as particularly relevant on the facts, given the concerns about absconding and the ability to secure the accused’s attendance at trial.

On the question of onus, the court distinguished the section 63(1) amendment application from an application for initial release on bail. It accepted as persuasive the approach in Shefer v Director of Public Prosecutions, Transvaal 2004 (2) SACR 92 (T) that the party seeking an amendment bears an onus on a balance of probabilities. The court formulated the applicant’s burden as advancing evidence indicating, on the probabilities, that the amendment would give credence to and be the best expression of the interests of justice.

The court then considered and rejected an argument that S v Savoi effectively compelled a similar outcome. It held that the principle of stare decisis binds a lower court only to the ratio decidendi of a higher court, and that Savoi was in any event distinguishable on the facts. The court pointed to features in Savoi absent here, including a long period of prior awareness of investigation during which the accused repeatedly travelled and returned, bail conditions that anticipated and regulated travel, and family remaining in South Africa during travel.

Applying these principles to the facts, the court treated the applicant’s request for the return of his passport and permission to travel and reside abroad as the most important feature of the application. It expressed concern about the applicant’s reliance on an employment opportunity requiring extensive travel and relocation, noting aspects it regarded as unusual or insufficiently persuasive. A key consideration was that, despite the applicant’s asserted extensive international travel connected to the same company prior to arrest, the issue was apparently not raised at the original bail proceedings, even though surrender of the passport was imposed to address flight-risk concerns and was not contested at that stage. The court inferred that if international travel had been paramount, it likely would have been raised and addressed in the original bail conditions, potentially through structured permissions.

The court also assessed the nature and concreteness of the employment offer. It considered it significant that a comprehensive job description would only be negotiated once the applicant was allowed to travel to Turkey, and it treated the evolving position in the applicant’s replying affidavit—where he indicated he would be satisfied to travel only to Dubai—as undermining the original rationale that physical presence and extensive travel were necessary to perform the functions relied upon. In the court’s evaluation, this supported a conclusion that the applicant’s focus appeared to be on being outside South Africa, particularly in Turkey, rather than on a clear and stable necessity tied to specific job functions.

Another important factor in the court’s reasoning was the practical and supervisory impact of permitting the applicant to relocate to Bursa, Turkey and to travel internationally while awaiting trial in South Africa. The court regarded this as effectively allowing the applicant to “set up camp” and become entrenched as a temporary resident of another country during the pendency of serious criminal charges. This, in the court’s assessment, conflicted with reliance on family ties in South Africa as a factor supporting attendance at trial, and it heightened concerns about securing the accused’s presence for future proceedings.

The court accepted that the applicant’s compliance with existing bail conditions counted in his favour, but it treated this as only one consideration in the broader balancing exercise. It placed weight on the fact that the charges had increased from three to nine, and that their seriousness had increased, which (in the court’s evaluation) could materially affect incentives to abscond in the face of a potentially lengthy custodial sentence if convicted.

The court also considered the State’s factual submission about difficulty obtaining cooperation from Turkish authorities in extradition matters. While it did not accept unsupported assertions linking the applicant to the other person said to be in Turkey, it treated the broader point—difficulty in securing extradition from Turkey—as relevant to the risk that the applicant might take advantage of such a situation if permitted to relocate there.

Finally, the court evaluated the applicant’s proposed additional reporting and monitoring conditions and concluded that, to a degree, they were not practically feasible and did not satisfy the objective that bail conditions should enable sufficiently close supervision by the police. In the court’s assessment, allowing the applicant to live in another country and to travel would materially impede the State’s ability to supervise him and ensure attendance at trial, and the proposed technological and diplomatic reporting measures did not overcome that concern.

On the cumulative effect of these considerations, the court held that the applicant had failed to satisfy it, on the probabilities, that the amendment sought would be in the interests of justice.

Outcome and Relief

The court dismissed the application for amendment of bail conditions.

No specific order as to costs was recorded in the judgment.

Cases Cited

S v DV & others 2012 () SACR 492 (GNP)

S v Louw 2000 (2) SACR 714 (T)

S v Russel 1978 (1) SA 223 (C)

Rex v Fourie 1947 (2) SA 547 (O)

Shefer v Director of Public Prosecutions, Transvaal 2004 (2) SACR 92 (T)

S v Savoi 2012 (1) SACR 438 (SCA)

S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC)

Ellish & Andere v Prokureur-generaal, Witwaterandse Plaaslike Afdeling 1994 (2) SACR 579 (W)

Turnbull-Jackson v Hibiscus Coast Municipality & Others 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC)

Legislation Cited

Criminal Procedure Act 51 of 1977

Righteous Assemblies Act 17 of 1956

Prevention of Organised Crime Act 121 of 1998

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, in an application under section 63(1) of the CPA to amend bail conditions, the decisive question is whether the amendment would be in the interests of justice, assessed through a discretionary balancing exercise informed by relevant statutory bail factors.

The court held further that the party seeking amendment bears an onus on a balance of probabilities to show that the proposed amendment is the best expression of the interests of justice.

On the facts, the court held that the applicant had not shown that returning his passport and permitting him to travel and reside in Turkey (with proposed reporting conditions) would sufficiently address flight-risk and supervision concerns, particularly in light of the seriousness and increased number of charges, the timing and indeterminacy of the employment proposal, and practical limitations on close supervision abroad.

LEGAL PRINCIPLES

The judgment applied the principle that bail conditions imposed under section 60(12) must be conditions that are, in the court’s opinion, in the interests of justice, and that conditions under section 62 function to address the State’s legitimate concerns about release, including attendance at court and preventing evasion of justice.

It applied the established criteria that bail conditions should not be contra bonos mores, should not be vague or ambiguous, should not be unlawful, and must be practically feasible, including being capable of sufficiently close supervision by the police.

It affirmed that an application to amend bail conditions under section 63(1) involves a discretionary value judgment balancing the accused’s interests against the public interest, and that the court may be guided by the statutory bail-factor framework in section 60(4) (and related provisions), especially those relevant to the risk of absconding and the integrity of the criminal process.

It applied the principle that, in a section 63(1) amendment application, the applicant bears an onus on a balance of probabilities to justify the amendment as being in the interests of justice, and that reliance on precedent requires attention to the ratio decidendi and factual distinguishability rather than broad factual comparison.

Lifman v S (CC35/21) [2021] ZAWCHC 238; 2022 (1) SACR 241 (WCC) (19 November 2021)