Brief Summary

Bail — Appeal against refusal of bail — Appellants charged with serious offences under Schedule 6 of the Criminal Procedure Act — Second bail application based on alleged new facts regarding strength of state case — Magistrate erred in determining that strength of state case could not be assessed before closure of state case — Court held that new facts did not sufficiently demonstrate exceptional circumstances warranting release on bail — Appeal upheld, and bail granted.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a bail appeal brought in terms of section 65 of the Criminal Procedure Act 51 of 1977. The appeal lay against a magistrate’s refusal of a second bail application brought on alleged new facts while the criminal trial was already underway but before the State had closed its case.

The appellants were Lucky Memeza and five co-appellants (six accused in total), and the respondent was the State. The appeal was heard by the Free State High Court, Bloemfontein (Molemela J and Da Rocha-Boltney AJ), after the magistrate (Ms Soomaroo) had refused bail on 12 November 2012 and indicated she had no additional reasons beyond her written judgment.

The procedural history was material to the appeal. The appellants had previously applied unsuccessfully for bail on 11 June 2011, and an appeal against that refusal was also unsuccessful. After some State witnesses testified at trial, the appellants brought a further bail application on 12 November 2012, contending that new facts had emerged from the trial process. That second application was refused, giving rise to the present appeal.

The dispute concerned whether the appellants had demonstrated exceptional circumstances justifying release on bail for Schedule 6 offences, and whether the magistrate’s approach to evaluating the State’s case and the alleged “new facts” was wrong under the appeal standard in section 65(4) of the Criminal Procedure Act.

Material Facts

The appellants faced five charges, including two counts of robbery with aggravating circumstances, one count of housebreaking with intent to steal and attempted theft, and two counts of possession of unlicensed semi-automatic firearms. The robbery counts were Schedule 6 offences, engaging the special bail regime in section 60(11)(a) of the Criminal Procedure Act.

The second bail application was launched after the trial had commenced and after four State witnesses had testified, but before the State case was closed. The alleged new facts relied upon were that identification evidence at trial was not sufficiently strong, that a pointing out by accused 2 (the second appellant) had been ruled inadmissible in a trial-within-a-trial, and that the section 204 witness (Mr Jansen) had given evidence of allegedly poor quality, including difficulty pointing out the relevant crime scene.

It was undisputed that the pointing out by the second appellant had been ruled inadmissible, and the High Court accepted (as the magistrate had) that this constituted a new fact. What remained disputed was the effect of that new fact, together with the trial evidence already led, on the overall strength of the State case and whether that weakening (if any) rose to the level of exceptional circumstances permitting release.

The evidence placed before the magistrate in the second bail application consisted of the transcribed testimony of four State witnesses who had testified at trial, together with the prior bail judgment(s). The appellants did not adduce fresh evidence or affidavits at the second bail application.

On the record summarised by the High Court, the State case on Charge 1 (the Spar robbery) included identification evidence by a security guard, Mr Makite, who identified the third appellant at an identification parade as the person who pointed a firearm at him, and identified the first appellant as one of the persons who accosted him. The State also relied on the evidence of Mr Jansen, a witness warned under section 204 of the Criminal Procedure Act, who described the planning and execution of the Spar robbery, implicated all six appellants in different roles, and identified certain appellants from still photographs derived from CCTV footage.

On Charge 2, the record before the High Court indicated that the State’s case was strongest against the first, second, and third appellants, including arrests in the vicinity of the relevant premises, while cellular phone evidence was said to place other appellants only within a broad radius. On Charge 3, no trial evidence had yet been led by the time of the bail proceedings; the State position at the earlier bail stage had relied on the pointing out (now inadmissible), identification issues, and an alleged confession by the sixth appellant whose admissibility appeared potentially affected by evidence suggesting assault-related injuries.

The High Court treated the history of delays as materially relevant. Most appellants had been in custody since May 2010. The trial commenced only on 12 December 2011, and by 19 January 2013 the State had still not closed its case. A joint memorandum showed multiple postponements attributable to a range of causes, including changes in legal representation, transcription delays associated with bail proceedings, a State postponement due to the prosecutor attending a course, and at least one defence postponement. The High Court regarded the overall delay as largely not the appellants’ fault.

Legal Issues

The central legal questions were whether, on appeal under section 65, the High Court was satisfied that the magistrate’s refusal of bail was wrong as contemplated in section 65(4), and whether the appellants had discharged the Schedule 6 bail onus under section 60(11)(a) by proving exceptional circumstances permitting release in the interests of justice.

A further issue concerned the proper approach to a second bail application based on new facts, specifically whether the court must consider the new facts in conjunction with the old facts and the totality of circumstances relevant under section 60.

The dispute involved both the application of law to fact and evaluative judgment. It required assessment of the strength of the State case on the evidence available at the bail stage, assessment of risks enumerated in section 60(4) (including flight risk and interference), and an evaluative determination whether the combined circumstances were “exceptional” for Schedule 6 purposes.

Court’s Reasoning

The High Court began with the governing statutory framework for Schedule 6 bail. Under section 60(11)(a), detention is the default position unless the accused adduces evidence satisfying the court that exceptional circumstances exist permitting release in the interests of justice. The High Court treated this as placing an onus on the accused to show exceptional circumstances on a balance of probabilities.

It further emphasised the appellate constraint in section 65(4): the appeal court may not interfere unless satisfied that the decision appealed against was wrong. The court then addressed the appellants’ complaint that the magistrate considered herself unable to determine the strength of the State case because the State had not yet closed its case. Relying on the Supreme Court of Appeal’s unreported decision in Mooi v The State (case no 162/12), the High Court held that a bail court can assess the strength of the State case even before the State closes its case; it follows that the magistrate’s contrary approach was erroneous. The court therefore upheld the substance of the fourth ground of appeal, while proceeding to conduct its own assessment on the record before it.

The court then set out the approach to “new facts” bail applications as reflected in S v Vermaas 1996 (1) SACR 528 (T) and S v Mohamed 1999 (2) SACR 507 (C), as approved in S v Petersen 2008 (2) SACR 355 (C). On that approach, the bail court must consider all the facts, both old and new, and determine on the totality whether the earlier refusal was wrong. Within that framework, the High Court accepted that the inadmissibility ruling on the second appellant’s pointing out was indeed a new fact, but treated the decisive question as the impact of that new fact on the overall strength of the State case and the “interests of justice” enquiry under section 60.

Turning to the evidence, the High Court assessed the State case charge by charge. For Charge 1, it concluded that the combined evidence of the section 204 witness (Mr Jansen), the security guard identification (Mr Makite), and the Spar manager (Mr Kruger) yielded a very strong case implicating all appellants. The court rejected criticism that Mr Jansen could not identify the exact Spar by name, holding that the State did not rely exclusively on his scene identification and that other evidence, including CCTV-derived stills and corroboration by other witnesses, supported the State’s identification and version. The court also held that the inadmissibility of the second appellant’s pointing out did not materially undermine the State case on Charge 1 because the State case did not depend solely on that pointing out. The court further rejected the submission that the robbery should be treated as a Schedule 5 offence on the basis that no keys were taken, finding the evidence established the elements of robbery with aggravating circumstances, including control of the premises, overpowering at gunpoint, and subsequent theft.

In evaluating the defence contention that the State case was insufficiently strong, the High Court relied on S v Mathebula 2010 (1) SACR 55 (SCA) for the proposition that to successfully challenge the merits of the prosecution case in bail proceedings, an applicant must go beyond asserting frailty and must show, on a balance of probabilities, that he will be acquitted, which is a demanding threshold. The High Court held that the appellants had not discharged that burden, particularly because they did not place countervailing evidence before the bail court at the second application.

For Charge 2, the High Court accepted that the State case was strong against the first, second, and third appellants, but materially weaker against the fourth, fifth, and sixth appellants. The State’s reliance on cellular phone evidence was treated as limited on the concession that it would show presence only within a broad radius, reducing its probative weight as against those appellants not arrested at or near the scene and in light of the inadmissible pointing out.

For Charge 3, the High Court held the State case was not strong against any appellant at that stage. It noted that the security guard who had already testified did not identify the person allegedly identified at an identification parade; it further observed that the pointing out evidence was inadmissible and that an alleged confession by the sixth appellant might face admissibility challenges given evidence suggestive of assault-related injuries, impacting voluntariness.

The High Court then weighed these assessments together with the broader statutory considerations under sections 60(4) and 60(6), including flight risk and conduct around arrest. It noted factors adverse to the first appellant (conflicting addresses), and to the third and fourth appellants (conduct suggesting attempts to evade arrest). It also recorded that certain appellants had other pending cases, but accepted—by reference to the reasoning in Mooi v The State—that pending cases did not, without more, establish a history of evading trial.

A significant part of the court’s reasoning concerned delay and its relevance under section 60(9). The High Court expressed concern at the prolonged pre-trial and trial delay, noting custody since May 2010, trial commencement only in December 2011, and the continuing incompleteness of the State case by early 2013. While the court did not attribute the delay exclusively to the State, it regarded the prolonged duration as largely not the appellants’ fault and described excessive delay as deplorable. It treated delay as capable, in appropriate circumstances, of contributing to “exceptional circumstances,” consistent with the approach noted in Mooi v The State.

After considering the totality, the court drew a distinction between the appellants. It held that exceptional circumstances existed warranting release on bail for the fifth and sixth appellants, principally because the State case against them had been materially weakened on certain charges (particularly Charge 2, and also Charge 3), and because of the prolonged delay in finalising the trial. In contrast, the court was not satisfied that comparable exceptional circumstances were shown for the first to fourth appellants, given the strength of the State case (notably on Charge 1) and additional risk factors identified on the record.

Outcome and Relief

The High Court dismissed the appeal in respect of the first to fourth appellants, leaving them in custody pending trial.

The High Court upheld the appeal in respect of the fifth appellant (Mr David Musimeke) and the sixth appellant (Mr Frankson Sifiso Cele), set aside the magistrate’s refusal of bail as it related to them, and substituted an order releasing them on bail of R5 000 each, subject to reporting, address notification, and trial attendance conditions.

No separate costs order was made, and the judgment reflects the outcome in the form of substituted bail terms rather than any costs disposition.

Cases Cited

Mooi v The State (Case No 162/12) (Supreme Court of Appeal) (unreported).

S v Vermaas 1996 (1) SACR 528 (T).

S v Mohamed 1999 (2) SACR 507 (C).

S v Petersen 2008 (2) SACR 355 (C).

S v Mathebula 2010 (1) SACR 55 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, sections 60(4), 60(6), 60(9), 60(11)(a), 65, 65(4), and 204.

Criminal Procedure Second Amendment Act 85 of 1997, Schedule 6.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, notwithstanding that the State case had not closed, a bail court is able to assess the strength of the State case, and the magistrate erred in treating the incomplete State case as a bar to such assessment. The court further held that in a renewed bail application based on new facts, the proper approach is to consider both the new and existing facts together to determine whether the earlier refusal was wrong and whether exceptional circumstances exist under the Schedule 6 regime.

On the evidence available, the court held that the State case remained very strong against all appellants on the Spar robbery charge (Charge 1), even after exclusion of the second appellant’s pointing out. It held that the State case was strong on Charge 2 principally against the first to third appellants, and not strong on Charge 3 at that stage. Considering the prolonged delays and the weakened position of the State case against the fifth and sixth appellants on certain charges, the court held that exceptional circumstances existed for those two appellants, but not for the first to fourth appellants.

LEGAL PRINCIPLES

The judgment applied the principle that where an accused is charged with a Schedule 6 offence, section 60(11)(a) requires continued detention unless the accused proves, on a balance of probabilities, that exceptional circumstances exist which, in the interests of justice, permit release on bail. This reflects a shifted onus in Schedule 6 bail proceedings.

It applied the principle that on a bail appeal under section 65(4), the appellate court may not interfere with the bail decision unless satisfied that the decision was wrong, while nonetheless being entitled to reassess the matter on the record where misdirection is shown.

It applied the approach that in bail proceedings brought on new facts, the court must consider all facts, both old and new, on the totality in deciding whether the refusal of bail was wrong, as reflected in S v Vermaas 1996 (1) SACR 528 (T), S v Mohamed 1999 (2) SACR 507 (C), and S v Petersen 2008 (2) SACR 355 (C).

It applied the principle that a bail court may assess the strength of the prosecution case even where the State has not closed its case, and that the incomplete status of the trial is not, in itself, a bar to evaluating strength for bail purposes, consistent with the approach referenced from Mooi v The State (Case No 162/12) (unreported).

It applied the principle from S v Mathebula 2010 (1) SACR 55 (SCA) that an applicant who challenges the prosecution’s case in bail proceedings bears a heavy burden and must do more than assert weakness; the applicant must show on a balance of probabilities that he will be acquitted, and until a prima facie failure of the prosecution is established, there may be no obligation on the State to rebut such an assertion.

It also applied the principle that delay in trial finalisation is a relevant consideration in the bail enquiry (including under section 60(9)) and, depending on the circumstances and its explanation, may contribute to a finding of exceptional circumstances, particularly where the delay is not substantially attributable to the accused.

Memeza and Others v S (A310/2012) [2013] ZAFSHC 27 (14 March 2013)