Brief Summary

Bail — Exceptional circumstances — Application for bail by accused facing serious charges — Accused has been in custody for over 7 years with trial ongoing for 5 years — Onus on accused to demonstrate exceptional circumstances justifying release on bail — Allegations of prosecutorial misconduct and police conspiracy raised without sufficient factual basis — State’s case against accused not clearly articulated, leading to disputes of fact requiring oral evidence — Court allowed cross-examination of State witness first to assess strength of State’s case — Accused's bail application ultimately postponed for further evidence and argument.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application for bail brought in the High Court of South Africa (Gauteng Local Division, Johannesburg) by Welcome Nkanyiso Mafunda (the applicant), with the State as respondent. The bail application arose in the context of an ongoing criminal trial in which the applicant faces nine charges, including murder, conspiracy to murder, aggravated robbery, and unlawful possession of a firearm and ammunition.

The applicant’s trial commenced on 28 April 2016 and, by the time of the bail proceedings in early 2022, had run for approximately five years without the State having closed its case. The applicant had been in custody for over seven years. This was the first bail application by the applicant to reach a hearing.

Procedurally, the bail application was initially enrolled before Wilson AJ on 21 January 2022. The applicant sought leave to supplement a sparse founding affidavit, which was granted, followed by a further exchange of affidavits. Due to substantial disputes of fact and inadequacies in the papers—particularly regarding the State’s articulation of the evidence against the applicant—oral evidence was heard from the investigating officer and from the applicant. Argument was ultimately presented on 7 March 2022, with proposed bail conditions submitted thereafter. Judgment was delivered on 14 March 2022.

The dispute centred on whether the applicant had shown “exceptional circumstances” justifying his release on bail in terms of the statutory regime applicable to serious offences, with particular focus on the strength of the State’s case, the prolonged delay in finalising the trial, and the conventional bail considerations of flight risk, interference with witnesses, and likelihood of committing further offences.

2. Material Facts

The applicant is standing trial with four co-accused in relation to the alleged robbery and murder of Bassam Boutrous Issa. Mr Issa was described as an associate of Radovan Krejcir, who is one of the co-accused and was said to be serving a lengthy prison sentence for organised-crime-related offences. The State’s general allegation was that Mr Krejcir owed Mr Issa a substantial sum of money and, to avoid repaying it, arranged for Mr Issa to be killed, allegedly by paying the applicant and others to plan and execute the murder.

The court treated it as material that the indictment was broadly drafted and did not clearly specify the applicant’s role. A particularly significant feature identified by the court was that the indictment alleged that the vehicle from which shots were fired was occupied by “accused 1–3 and/or other unknown assailants”, with the applicant being accused 2. On the court’s reading, this breadth was not readily consistent with a clearly defined assertion that the applicant directly participated in the shooting.

On the evidence placed before the court for purposes of bail, it was conceded on behalf of the State that there was no evidence linking the applicant to counts 3, 4, and 5 (robbery with aggravating circumstances, unlawful possession of a firearm, and unlawful possession of ammunition), and that he would likely be acquitted of those charges. There was dispute as to whether additional concessions had been made during the trial relating to conspiracy counts, but the court treated the decisive enquiry as what positive case the State advanced against the applicant, especially on the most serious count.

The principal charge for bail purposes was count 7 (murder), which triggered the statutory onus in bail proceedings. It was ultimately conceded before the court that the evidence linking the applicant to the murder charge consisted of testimony from accomplice-type witnesses (or witnesses likely implicated in Mr Krejcir’s enterprise) who were induced to testify under section 204 of the Criminal Procedure Act 51 of 1997. The court considered extracts from the running transcript of the trial (which had grown to roughly 10 000 pages) in order to test competing characterisations of the evidence.

From the transcript material relied upon, the court noted, in summary, the following. One relevant witness (Lucky Mokoena) implicated the applicant in a meeting at which a plan was discussed, but accepted he did not actually hand over Mr Issa to the applicant or co-accused. Another witness (Mondli Mbelu) was alleged to have been contacted by the applicant from prison regarding concealment of the murder weapon, but transcript passages were interpreted as supporting that the witness acted alone in hiding the weapon. Evidence from a further witness (Jacob Nare) concerning payments for the killing was found to be unclear and potentially internally inconsistent as to whether it implicated the applicant or rather another accused.

The applicant tendered two addresses for bail purposes, one in Randfontein, Gauteng and one in Mtwalume, KwaZulu-Natal. The police position was advanced as part of an alleged inability to verify addresses, but the court noted that the Randfontein address appeared to have been confirmed as belonging to a relative, and that the State had not placed a clear account before the court of recent efforts to verify the Mtwalume address, notwithstanding a confirmatory affidavit from the applicant’s brother providing fuller details.

The State relied on allegations suggesting possible witness interference and untrustworthiness, including that the applicant had previously entered into a plea and sentence arrangement in another matter, was placed in witness protection, then left witness protection and did not testify. The applicant accepted leaving witness protection but said he remained available and was simply not called. The court treated the factual record placed before it on this issue as insufficiently developed to support firm adverse inferences for purposes of bail.

The State also relied on the applicant’s previous convictions (including business robbery) and on two other pending matters in regional courts, but the court noted that bail had been granted in relation to those other matters and that the relationship between those matters and the present trial was not properly elucidated on the papers or in evidence.

3. Legal Issues

The central legal question was whether, given the seriousness of the charges and the applicability of section 60(11)(a) of the Criminal Procedure Act 51 of 1997, the applicant had discharged the onus of adducing evidence satisfying the court that exceptional circumstances existed permitting his release on bail in the interests of justice.

This question involved an application of law to fact and the exercise of a value judgment in evaluating the bail factors, particularly the relative strength or weakness of the State’s case and how that interacts with prolonged pre-trial detention and delay in the completion of the State’s case. In addition, the court was required to consider fact-bound bail risks, including whether the applicant posed a likelihood of interfering with witnesses, absconding, or committing further offences, as contemplated in the statutory framework governing bail.

A further procedural issue arose in the bail proceedings themselves regarding the order in which oral evidence should be led, including whether the investigating officer could be required to be cross-examined before the applicant testified, notwithstanding the onus resting on the applicant.

4. Court’s Reasoning

The court began by confirming that the bail application was governed by section 60(11)(a) and that the applicant accordingly bore the onus to establish exceptional circumstances justifying release. While the court indicated that, in a trial already lasting five years, the strength of the State’s case might ordinarily be capable of relatively straightforward assessment, the actual assessment was complicated by the poor quality of both parties’ papers, particularly the State’s lack of a detailed, coherent summary of the evidence implicating the applicant.

On the procedural dispute about the order of evidence, the court rejected the State’s contention that the applicant necessarily had to testify first because he bore the onus. The court distinguished between the onus of proof and the duty to begin, holding there is no inflexible rule that an accused must lead evidence first in bail proceedings, especially where affidavits have been exchanged and disputes of fact require oral evidence. The court emphasised the unique procedural character of bail proceedings and the court’s ability (and, where necessary, duty) to adopt an inquisitorial approach to establish the facts relevant to the bail decision, including tailoring the order of evidence to the issues requiring clarification. Given that the primary issue was the strength of the State’s case, and that the investigating officer was the person best placed to address it, the court found it appropriate that she be cross-examined first.

Turning to the merits, the court treated the strength of the State’s case as the primary consideration. It noted that the indictment itself did not clearly articulate the applicant’s alleged role and, in a key passage, alleged involvement in a manner that the court considered overly broad. The court further took account of the State’s concession that there was no evidence implicating the applicant on certain counts, and focused the analysis on the murder charge, which was central to the bail onus.

The court accepted that the evidence linking the applicant to the murder count rested on section 204 witnesses and acknowledged that such evidence is generally approached with caution. Importantly, the court’s conclusion did not rest solely on the cautionary nature of accomplice evidence, but on the court’s view that, even taken at face value, the evidence extracts and the State’s presentation did not yield a coherent, persuasive account of how the applicant associated himself with the alleged common purpose or furthered it. The court considered portions of the transcript referred to in argument and found that they did not clearly implicate the applicant in the murder itself, and that aspects said to implicate him were unclear or contested in a manner not resolved by the material presented.

In evaluating the State’s case in bail, the court applied authority emphasising that a bail court must determine the relative strength of the prosecution case on the material before it. The court held that where the State fails to make out a case with sufficient detail or persuasion to permit even a prima facie assessment of strength or weakness, the accused should receive the benefit of the doubt. On the record before it—particularly given the absence of a cogent account from the State, whether in the indictment, affidavits, or the investigating officer’s evidence—the court found itself unable to conclude that the State had a strong case against the applicant and considered that the applicant should be given the benefit of the doubt arising from those deficiencies. This feature was treated as strongly supporting a finding of exceptional circumstances.

The court then considered the significance of the length of the trial and the applicant’s prolonged detention. It referred to authority recognising that an apparently weak State case combined with lengthy trial delays can amount to exceptional circumstances. Although the State sought to attribute delay to “frivolous” applications and to changes in counsel, the court found that the information needed to make firm findings on causation of delay was not properly placed before it. The court nevertheless reasoned that the length of the proceedings was relevant in that, if the State indeed had a strong case, it ought to have been able—after years of trial and thousands of pages of record—to present a clear, convincing account of the applicant’s alleged involvement for purposes of bail. The continued absence of such clarity strengthened the applicant’s case on exceptional circumstances.

Addressing the State’s further objections, the court found the witness-interference allegation inadequately supported on the information presented. It noted that the State’s contention arose from the applicant’s earlier trial and acquittal on a charge of conspiracy to murder a witness, with the State characterising the acquittal as technical due to entrapment issues under section 252A. The court considered the summary insufficient to support a conclusion of a real risk of witness interference in this matter, and noted that the witness said to have been targeted had by then testified.

On flight risk, the court was not satisfied that the address-verification concerns were established to the degree claimed, and noted the absence of a detailed account of steps taken to verify the second address. The court treated the applicant’s previous departure from witness protection as a concerning allegation but found that the State had not provided sufficient factual clarity, including as to any steps taken in consequence of the alleged breach, and thus it could not reliably support a finding that the applicant was a flight risk on the present record.

On the alleged likelihood of committing further offences, the court held that prior convictions could contribute to such a finding but would generally need to show a pattern of offending. The court expressed reluctance to deny bail on what would amount to an excessive or punitive reliance on past convictions, and it also noted the undesirability of preventative detention absent a clear case. The existence of other pending matters, in circumstances where bail had already been granted in those matters and the State had not explained their bearing, did not materially advance the State’s argument.

Having weighed these considerations, the court found that the combination of the apparent weakness (or, more precisely, the inability on the State’s presentation to demonstrate strength) of the case against the applicant, together with the extraordinary delay and duration of custody, constituted exceptional circumstances permitting release on bail. The court further held that the State had not advanced proven considerations that would justify continued detention, and that appropriate bail conditions would address the relevant risks.

5. Outcome and Relief

The court granted the application and ordered that the applicant be released on bail, finding that exceptional circumstances were present, primarily due to the inadequately demonstrated strength of the State’s case and the prolonged duration of the trial and detention.

Bail was fixed in the amount of R20 000 and was made subject to detailed conditions, including residence at a specified Randfontein address, twice-weekly reporting to a police station, restrictions on travel outside Gauteng without informing the investigating officer (with a mechanism for verification and reporting should the applicant reside outside Gauteng), and prohibitions on contacting or interfering with witnesses or tampering with evidence or the investigation. The applicant was also required to stand trial and attend court as directed.

The judgment did not record a separate costs order.

Cases Cited

S v Pothern 2004 (2) SACR 242 (C).

Majali v S [2011] ZAGPJHC 74 (19 July 2011).

S v Schietekat 1998 (2) SACR 707 (C).

S v van Wyk 2005 (1) SACR 41 (SCA).

S v Kock 2003 (2) SACR 5 (SCA).

Mooi v S [2012] ZASCA (30 May 2012).

Legislation Cited

Criminal Procedure Act 51 of 1997, section 60(11)(a).

Criminal Procedure Act 51 of 1997, section 60(3).

Criminal Procedure Act 51 of 1997, section 204.

Criminal Procedure Act 51 of 1997, section 252A.

Criminal Procedure Act 51 of 1997, section 60(4)(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the bail application fell under section 60(11)(a) of the Criminal Procedure Act 51 of 1997 and that the applicant bore the onus to establish exceptional circumstances permitting release on bail.

The court found that it could not conclude on the material presented that the State had a strong case against the applicant on the murder charge, particularly given the lack of a coherent account of the applicant’s alleged role and the reliance on section 204 witnesses without a sufficiently clear narrative of participation or common purpose.

The court held that, where the State’s presentation is so lacking in detail or persuasion that a bail court cannot form even a prima facie view of strength or weakness, the applicant must receive the benefit of the doubt, and that this factor supported a finding of exceptional circumstances.

The court further held that the prolonged duration of the trial and custody, in conjunction with the deficiencies in the State’s demonstration of its case, constituted exceptional circumstances, and that the State had not shown a sufficiently substantiated risk of flight, witness interference, or future offending to justify continued detention.

LEGAL PRINCIPLES

The judgment applied the principle that, notwithstanding the onus on an accused under section 60(11)(a), bail proceedings have a distinct procedural character and the court may adopt an appropriately inquisitorial approach to ascertain the facts relevant to bail, including managing the order in which evidence is received so as to illuminate the decisive issues.

The judgment applied the principle that a bail court must assess the relative strength of the State’s case on the material placed before it. Where the State fails to present its case with sufficient clarity, detail, and persuasiveness for a prima facie assessment, the accused should receive the benefit of the doubt for purposes of the bail enquiry.

The judgment applied the principle that exceptional circumstances may be established by the combination of an apparently weak or insufficiently demonstrated prosecution case and lengthy delay in finalising the criminal proceedings, particularly where the accused has been detained for an extended period and the State is unable to articulate a coherent basis for continued detention.

The judgment applied the principle that refusal of bail based on the likelihood of future offending under section 60(4)(a) requires a properly supported assessment of likelihood, and that prior convictions will not necessarily suffice absent evidence suggesting a pattern or clear propensity; courts should be cautious of bail refusal that functions as punitive or overly preventative detention without a clear factual foundation.

Mafunda v S (A02 / 2022) [2022] ZAGPJHC 138 (14 March 2022)