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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: CC72/2021
In the matter between:
ZIMINGONAPHAKADE MAHLATHI Applicant
and
THE STATE Respondent
Date of argument: 28 May 2024
Date of judgment: 31 May 2024
JUDGMENT
___________________________________________________________________
ANDREWS, AJ
Introduction
[1] This is an opposed Schedule 6 Bail Application, brought by Mr Mahlathi (“the
Applicant”). The Applicant approaches this court for the following relief inter alia:
(a) That bail in the amount of R5000 be fixed;
(b) That the Applicant is to reside at his alternative address situated at 5 K […]
Street, S[…], Delft;
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(c) That the Applicant is to report to the Station Commander at Delft South African
Police Service Station o n every Wednesday and Sunday between the hours
14h00 and 18h00 until the matter is finalised;
(d) That the Applicant must not leave the province of the Western Cape without the
written consent of the Investigating Officer.
[2] According to the indictment, the Applicant together with his co -accused are
charged with 5 counts of murder, one count of attempted murder and one count of
possession of an unlicensed firearm and ammunition. The charges fall within the ambit
of Schedule 6 of the Criminal Procedure Act 51 of 1977 (“the CPA”).
The evidence
[3] The Applicant, adduced evidence by way of affidavits marked Exhibits “A” and
“C”, respectively. The State adduced evidence by way of an affidavit attested to by the
Investigating Officer, Sergeant Sizwe Ncaku (“Sgt. Ncaku”), received into evidence
and marked as Exhibit “B”.
The allegations
[4] The merits of this m atter as summarised by Sgt. Ncaku , the Investigating
Officer, in his affidavit, marked Exhibit B are as follows:
‘11. On 20 June 2020 the five deceased together with others were at 3[…] B[…] 4 Lower
Cross Roads, Philippi East playing television games.
12. At around 17h30 the Applicant together with others went there to confront them
about an earlier accident.
13. Some of the accused persons were armed with firearms. They started firing shots
and 5 persons were shot and killed. One person survived. They fled the scene.
14. A firearm has been recovered.’
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Legal Framework
[5] Section 60 (11) of the CPA”, states as follows:
‘Notwithstanding any provision of this Act, where an accused is charged with any offence
–
(a) Referred to in Schedule 6, the court shall order that the accused to 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 permits his or her release…’
[6] Section 60(4) sets out a list of circumstances in which it would not be in the
interests of justice to grant bail to an accused person. The subsection provides as
follows:
The interests of justice do not permit the release from detention of an accused where
one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on
bail, will endanger the safety of the public or any particular person or will commit
a Schedule 1 offence; or
(b) where there is the likelihood that the accused, if he or she were released on
bail, will attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were released on
bail, will attempt to influence or intimidate witnesses or to conceal or destroy
evidence; or
(d) where there is the likelihood that the accused, if he or she were released on
bail, will undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.
[7] Subsections 60(5) to (10) provide guidance on what factors should be taken
into account when considering the factors set out in section 60(4).
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Principal Submissions by the Parties
[8] Sgt. Ncaku, submitted that there is a strong prima facie case against the
Applicant. The Applicant placed on record that he intends to plead not guilty to the
charges levelled against him. The Applicant argued that the Investigating Officer does
not, expound on his role in the commission of the offences. It is the Applicant’s
contention that more detail regarding the prima facie evidence they have against him
should have been placed before this court. This information is to include, inter alia,
details pertaining to the recovered firearm.
[9] It is alleged that the Applicant belongs to a group of persons calling themselves
“2C” who fight, rob and extort people in the community of Philippi. The Applicant
argued that there is no evidence to sustain this averment. In augmentation, it is
submitted that the Applicant is not charged with any count of extortion or robbery which
are some activities ordinarily associated with the said gang. The Applicant furthermore
disputes any allegations that he has knowledge of or ha s participated in any gang -
related activities particularly those of the said “2C” gang or how he is said to be linked
to the said gang.
[10] The Applicant submitted that the interest of justice permits his release
and then proceeded to deal with all the considerations and trite jurisdictional factors to
be considered in this regard.
Personal Circumstances
[11] The personal circumstances of the Applicant are as follows:
(a) He is a South African citizen;
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(b) He was born on 7 January 1997;
(c) He has a fixed residential address where he has been residing since he was
born;
(d) He is unmarried;
(e) He has no dependants;
(f) He is unemployed;
(g) He failed grade 12;
(h) He owns no assets.
[12] Sgt Ncaku, verified the Applicant’s date of birth, his marital status and
confirmed that the Applicant has no children. The Applicant resides with his mother in
Lower Cross Roads. His mother too is unemployed.
Section 60(4)(a) read with sub-section (5) of the CPA
[13] It was submitted that there is no evidence that the Applicant is a danger
or threat to any specific person or that there is a likelihood that he will commit schedule
1 offences should he be released on bail, based on the fact that he has a clean criminal
profile, namely, that he has no previous convictions or pending cases. He is not aware
of any interim or final order issued against hi m in terms of the Domestic Violence Act
116 of 1998. He is not aware of any interim or final order issued against him in terms
of the Protection from Harassment Act 17 of 201 1. He is not on any form o f parole
under the Correction Services Act.
[14] Sgt. Ncaku confirmed that the Applicant has no previous convictions ,
pending cases or outstanding warrants for his arrest . However, it was brought to the
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court’s attention that the accused was arrested on a murder charge under Philippi East
CAS 101/07/2018 on 14 January 2020. The allegations in that matter w ere that the
Applicant instructed his co -accused to shoot the deceased , which was done. The
police sought the Applicant for about 18 months before he was arrested, having made
several visits to his home address. It was further illuminated that the Applicant was
traced by chance when a vehicle in which he was travelling was stopped by the police.
That matter was withdrawn against the Applicant on 4 February 2020 because the eye
witnesses were shot and killed. The Applicant stated that he disputed the allegations
made by Sgt. Ncaku regarding the merits.
[15] In light hereof, Sgt. Ncaku expressed that this previous arrest
demonstrates a real likelihood that he will continue to commit schedule 1 offences if
he is released on bail which should be considered in conjunction with the purpose of
the group “2C” of which the Applicant is a member.
[16] In response, the Applicant placed on record that the aforementioned
matter is not before this Court and as such he is not obliged to place his defence of
this case before this Court. He indicated that notwithstanding, he would take the Court
into his confidence, and highlighted that the offence was allegedly committed in July
2018 and that he was only subsequently arrested in January 2020. He does however
go on to state that the witnesses in the Philippi East matter were not known to him and
as such he cou ld not have been in a position to interfere with the investigations or
attempt to undermine or jeopardise the objectives or the proper function of the criminal
justice system, in the manner alleged by the Investigating Officer. This is to be
considered in light of the fact that the investigations in that matter were not yet finalised
at the time when the matter was withdrawn. In this regard, the Applicant stated that he
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was not presented with evidence which could have possibly led to his knowledge of
the witnesses, and subsequently lead to interference. The Applicant stated that he
played no role in the withdrawal of the matter.
[17] Furthermore, the Applicant disputed that he was sought for 18 months
and contended that he was at all relevant times present in the jurisdiction of Cape
Town. According to the Applicant, he was not informed that the police were looking for
him and to what extent they were looking for him. It was argued that there is nothing
to support the averment that the police visited his residential address.
Section 60(4)(b) read with sub-section (5) of the CPA
[18] It was submitted that the Applicant does not have a history of evading
trial and as such there is no evidence that he is likely to evade his trial should he be
released. In further amplification, it was contended that he does not have any travel
documents that could enable him to leave the country and that he has no financial
means to travel outside the borders of South Africa. Furthermore, it was contended
that his entir e family resides within the jurisdiction of the Court , thus reinforcing that
he is firmly rooted within the jurisdiction of the Court.
[19] According to Sgt Ncaku, information was received that the Applicant was
in Queens Town, Eastern Cape. A tracing operation was undertaken and the Applicant
was arrested there on 8 November 2020. The Applicant informed that the reason why
he was in the Eastern Cape to attend the funeral of his friend. Prior to his arrest he
was always in Cape Town, at his residential address.
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[20] According to the Applicant, the offence occurred in the earlier part of
2020 and the Applicant was only arrested in November 2020. The Applicant alleges
that they do not know at what point the accused was linked to the offence, which will
inform whether he was indeed evadi ng his arrest. It was also submitted that there is
just a blanket averment that efforts were made in respect of tracing the Applicant with
nothing to support. This, it was argued could easily have been achieved through
pocket book entries and even if the c urrent Investigating Officer was not involved at
the initial stages of the investigation, those attempts had to have been documented
and placed before this court.
[21] It was clarified that the proposed bail amount of R5000 has been raised
by the family of the Applicant. It was argued that the amount proposed is not intended
to undermine the seriousness of the offence.
Section 60(4)(c) read with sub-section (7) of the CPA
[22] The Applicant submitted that there is no evidence that he is likely to
influence and/or intimidate witnesses in this matter and neither that he has a history
of influencing and/or intimidating witnesses. In addition, it was submitted that the
investigation in this matter is completed and the Respondent has secured all its
witnesses and/or all the evidence it intends to use in order to prove its case against
him.
[23] Sgt Ncaku, contended that the Applicant knows the identity of the
witnesses and it has come to his attention that during November 2022, Mr X, whose
identity was withheld to protect his safety was approached by one “T D” at the request
of the Applicant to t ell him that he must not testify otherwise something bad would
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happen. The witness feared for his safety. According to Sgt. Ncaku, the Applicant is
well known to the witnesses as they grew up together and attended the same school.
[24] The Applicant disputes these allegations regarding the alleged attempts
to intimidate Mr X. In support hereof, it was submitted that the Applicant was already
in custody and had no knowledge of the content of the docket and as such would not
have known who the witnesses are. Furthermore, he was not charged or prosecuted
for intimidation.
[25] It came to light during the address by the Counsel for the Respondent
that Mr X has since been killed on 25 June 2023. It was further argued that the passing
of Mr “X” shouldn’t raise a red flag as his demise cannot be linked to the Applicant
which is cemented by the fact that no criminal proceedings have been instituted
against the Applicant. It was further more argued that the role of that witness has not
been disclosed so as to establish a motive for the said witness’ murder. It was argued
that the court has not been taken into the State’s confidence in this regard.
Section 60(4)(d) read with sub-section (8) of the CPA
[26] The Applicant submitted that there is no evidence that he is likely to
undermine or jeopardise the objectives or the proper functioning of the criminal justice
system, including the bail system. In this regard, it was contended that there is no
evidence that he had knowingly supplied false information to the police during or after
the arrest in this matter. Moreover, it was placed on record that he had never in the
past failed to comply with bail conditions nor is there any evidence that if he were
released in this matter that he will be likely to violate any of his bail conditions.
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Section 60(4)(e) read with sub-section (8A) of the CPA
[27] The Applicant submitted that there is no evidence that he would likely
disturb the public order or undermine the public peace or security should he be
released. In augmentation it was contended that there is no evidence that he is
considered by the public to be a danger and or that he is perceived to be a threat by
the public. Furthermore, that there has been no public protest or outcry against his
release.
[28] The merits of this matter involve mass murder. It was contended that this
type of offence is on the rise in the jurisdiction of the Court. Sgt. Ncaku stated that the
community is living in fear and have lost faith in the justice system. It was further
contended that they constantly protest over their children that are killed on a daily basis
and threaten to take the law into their own hands.
Delays to finalise the matter
[29] The Applicant placed on record that since his arrest in 2020, he has yet
to plead to the charges ; which delays were not occasioned by him or his legal
representative. No trial date has been allocated for this matter. It was contended that
his constitutional right to have his trial begin and conclude without unreasonable delay
is violated by the delays in this matter.
[30] It was suggested that bail conditions could be ordered in order to create
a balance between what the accused wants and what the State wants.
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Legal principles
[31] It is trite that the onus rests on the Applicant to adduce evidence which
satisfies the court that exceptional circumstances exist which in the interest of justice
permit his release on bail.1
[32] The approach to Schedule 6 bail applications have been aptly distilled in
Killian v S 2
‘The import of the ‘exceptional circumstances’ test has been traversed in a number of
judgments. In S v Jonas 1998 (2) SACR 677 (SE) at 678E-G it was held that the term
does not posit a closed list of circumstances. Whether a court may be satisfied that
exceptional circumstances exist depends on the facts and circumstances established in
the given application. Whereas ‘ exceptional’ denotes something ‘ unusual,
extraordinary, remarkable, peculiar or simply different’ (see e.g. S v Petersen 2008 (2)
SACR 355 (C) at para [55]), it has been observed that ‘(s) howing “exceptional
circumstances” for the purposes of s 60(11) of the CPA does not posit a standard that
would render it impossible for an unexceptional, but deserving applicant to make out a
case for bail ’ (S v Josephs 2001 (1) SACR 659 (C) at 668I and S v Viljoen 2002 (2)
SACR 550 (SCA)). They do not have to be circumstances ‘ over and beyond and
generically different from those enumerated in ss 60(4) -(9)’, which are circumstances
to which regard is had in run of the mill bail applications not subject to the strictures of
s 60(11). It is clear, however, that they must at least be compelling enough to take the
case made out for the granting of bail beyond the ordinary.
A court determining a bail application affected by s 60(11) is required to consider the
conspectus of evidence and decide whether it is sufficient to persuade the court that an
exception should be made to the default situation, which is that an accused per son
detained on for trial on a Schedule 6 offence should remain in custody pending the
outcome of the criminal proceedings. This involves the court in having to make a value
judgment (‘waarde-oordeel’); cf. S v Botha en ’n Ander 2002 (1) SACR 222 (SCA) at
para 19.’
1 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat [1999] ZACC 8 (3 June 1999); 1999 (2) SACR
51(CC).
2 [2021] ZAWCHC 100, para 3 – 5.
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Discussion
[33] The State argued that the crisp issue for determination is whether the
Applicant’s personal circumstances coupled with the delays amount to exceptional
circumstances. It was argued that at no point does the Applicant challenge the merits
of the State’s case. The Applicant in response stated that they were not conceding
that the State has a strong case.
[34] It was argued by the State that in the previous matter and the current
matter witnesses have been eliminated. The fact that the accused may have been in
police custody when the respective witnesses were killed does not detract from the
fact that there is an uncanny coincidence.
[35] It is noteworthy that the accused abandoned his bail application in the
lower court which was set down for hearing on 16 March 2021. On 8 February 2023,
the Applicant, again abandoned his bail application in the High Court. It was argued
that the objective facts require the Court to consider why the Applicant is vigorously
pursuing bail now. The Respondent suggests it is because Mr “X” is no longer there.
Counsel for the Respondent disclosed that they have secured another witness and the
demise of Mr “X” does not weaken the State’s prima facie case against the Applicant,
which case has been established from the outset and not at a later stage as suggested
by the Applicant.
[36] It was also argued that the delays in ensuring the speedy finalisation of
this matter is occasioned by systemic challenges that are being addressed, owing to
the overburdened court rolls. This, it was argued, is not sufficient reason to be
considered as ex ceptional as there are others who have been awaiting for the
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commencement of their matter s for up to 6 years, through no fault of anyone in
particular. The State is ready for trial.
[37] In a Schedule 6 bail applicat ion, the onus is on the Applicant to show
that there are exceptional circumstances that exist which in the interest of justice
permit his release on a balance of probabilities. It was argued that in order for the
Court to decide on a balance of probabilities, the State is also to put something onto
the proverbial scale for the court to be able to make such a determination. It has been
held that it does not mean that the State can remain passive by not adducing evidence
or sufficient rebutting evidence in the hope that the Applicant might not discharge the
onus.
[38] In casu there are a number of aspects that raise some concern.
According to the indictment, the offences occurred on or about 30 June 2020. T he
Applicant was arrested in November 2020 . He is one of 5 accused who have been
charged with multiple counts of murder. The allegations are that certain of the accused
together with others, were armed with firearms and fired shots thereby fatally injuring
4 of the victims who died on the scene, another victim succumbed to his injuries in
hospital and a 6th victim survived. The accused who have been charged were identified
as the perpetrators of a mass murder.
[39] The Applicant suggested that he does not know at which stage he was
linked to the offence, but does not challenge the merits of the State’s case. This is
furthermore uncanny as the Applicant was added to the case on 23 November 2020
where the record of proceedings reflects that he was linked by an eye witness who
knows him from school days. Whilst it is his right to remain silent and not disclose the
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basis of his defence, he has not taken the court into his confidence save for placing
on record through his Counsel that they were not conceding that the State has a strong
case. It therefore begs the question as to whether this is informed by the fact that Mr
“X” has been eliminated. Whilst there is no direct evidence to suggest that the
Applicant had anything to do with the demise of Mr “X”, the Court cannot ignore the
fact that it has happened. This coupled with the eradication of the witness in the other
case appears to be too coincidental. I interpose to state that I make no finding in this
regard and that for the purposes of a bail application, these considerations are of
importance and cannot be ignored.
[40] Of seminal importance is the manner in which the indictment reads,
which suggests that the Applicant and his co -accused were not the only persons
involved in the offences. It is apparent that only those who could be identified were
ultimately arrested, meaning that there are other co-perpetrators who are at large. This
is further to be viewed in the context of the averment that the Applicant and his co -
accuseds are part of a gang who operates within the area. The fact that the Applicant
has not be en arrested and/or charged with these offences does not infer that there
hasn’t been interference with witnesses in some way manner or form. The test applied
for the purposes of the bail application is “balance of probabilities ” and not “proof
beyond reasonable doubt ”. The allegation that the Applicant is part of a gang
presupposes an affiliation with activities associated with such grouping.
[41] Whilst it ca n be understood that the Applicant had the other pending
matter which may have informed the reason for not bringing a bail application at the
same time as his co -accuseds. The record reflects that he had a bail application
pending in the other matter on which he was held in custody. The Applicant in March
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2021 abandoned his bail application yet the other matter was withdrawn in February
2021. Inasmuch as it remains his election to launch a bail application, the delay in
doing so requires that the Court consider all factors, which in this instance, includes
the eradication of witnesses in both matters as earlier stated as well as the election by
the Appellant in bringing a bail application at this stage.
[42] In addition, the Applicant was at large for a long time on his previous
matter and also for a few months on this matter before being arrested. The flight risks
cannot be ruled out as the Applicant was traced in the Eastern Cape and not in Cape
Town. Although there are assertions that the Applicant may have violated C ovid-19
Regulations, that in and of itself is not the overarching consideration. Even if the court
disregards that completely, there is no confirmation that the Applicant attended a
funeral in the Eastern Cape.
[43] The Applicant’s personal circumstances, which include that he is
unemployed, unmarried and has no dependants, does not anchor him to his home. It
is proposed that this concern can be overcome by ordering strict bail conditions and
an order that the Applicant re sides at an alternative address. T his can only be done
once the Court finds that the interest of justice permits the Applicant ’s release as a
starting point. Furthermore, there is nothing put up to confirm that arrangements are
in place for the Applicant to reside at the proposed alternative address and neither has
there been a request that thi s option be followed up by the Investigating O fficer.
Granted, this could still be ordered by the Court if the Court is of the view that the
interest of justice permits the Applicant’s release.
[44] What is paramount is that the Applicant discharges the onus required in
matters of this nature. It may be so that there is no evidence that he hasn’t previously
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complied with bail conditions, this factor on its own is not the overarching consideration
and must be viewed in conjunction with all other factors.
[45] The Applicant furthermore suggested that he was at all times in the
jurisdiction of his home, and that there is nothing forthcoming from the State to prove
that the police had done home visits to locate him. T he same could be said of the
Applicant. He stated in his affidavit that he has been living at his mother’s house all
his life. In order to strengthen the force of his argument a confirmatory affidavit from
his mother would have been sufficient proof as she could verify for example that no
police officer came looking for the Applicant and/or that the Applicant slept at home
during that period and/or that the Applicant travelled to the Eastern Cape to attend a
funeral. Furthermore, the police had to undertake a tracing operation in Queens Town
in order to ultimately arrest the Applicant.
[46] There is a myriad of case law that provides guidance as to what courts
have regarded as exceptional circumstances. It is clear that each case will be
determined on its own merits. Whilst continued detention of an accused is not ideal,
the delay in the Applicant launching the bail application was a decision he has taken.
If he had decided to bring a bail application in 2021, or 2023 when he had the
opportunity to do so, he may have had an outcome sooner.
[47] In Mafe v S3 Lekhuleni J, of this Division remarked as follows concerning
the presumption of innocence:
‘In summary, the presumption of innocence is one of the factors that must be considered
together with the strength of the State’s case. However, this right does not automatically
entitle an accused person to be released on bail. What is expected is that in Schedule
3 Mafe v S [2022] ZAWCHC 108 (31 May 2022) at para [143] (in a dissenting judgment).
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6 offences the accused must be given an opportunity, in terms of section 60(11)(a), to
present evidence to prove that there are exceptional circumstances which, in the
interests of justice, permit his release. The State, on the other hand, must show that,
notwithstanding the accused’s presumption of innocence, it has a prima facie case
against the accused. In reaching a value judgment in bail applications, the court must
weigh up the liberty interest of an accused person, who is presumed innocent, against
the legitimate interests of society. In doing so, the court must not over -emphasise this
right at the expense of the interests of society.’
[48] This court has a measure of understanding that there is uncertainty as
to when the trial will commence. It is however apposite to mention that there is judicial
oversight in this regard and a pre-trial date has been fixed for 23 August 2023 to
ensure that interest of justice considera tions, as well as the Applicant’s entrenched
constitutional rights are being monitored. Systemic challenges are being addressed
with a view to ensuring that this trial commence as soon as possible.
Conclusion
[49] This court has regard to the provisions of Section 35(1)(f) of the
Constitution that ‘Everyone who is arrested for allegedly committing an offence has
the right - ... to be released from detention if the interests of justice permit subject to
reasonable conditions .’ The court is not concerned with determining the guil t or
innocence of the Applicant at a bail hearing. It was aptly pointed out in Conradie v S4
that:
‘The bail court’s concern with the interests of justice, in the sense of weighing in the
balance ‘the liberty interest of the accused and the interests of society in denying the
accused bail’, will however in most cases entail that it will have to weigh, as best it can,
the strengths or weaknesses of the state’s case against the applicant for bail. A
presumption in favour of the bail applicant’s innocence plays no part in that exercise.
4 [2020] ZAWCHC 177 (11 December 2020) at paras [19]-[20].
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The court will, of course, nevertheless bear in mind the incidence of the onus in making
any such assessment.’
[50] As previously stated, t he standard of proof is on a balance of
probabilities. In S v Branco,5 the Court held that a ‘bail application is not a trial. The
prosecution is not required to close every loophole at this stage of the proceedings.’ It
is furthermore incumbent on this Court, in reaching a value judgment in bail
applications, that it is enjoined to weigh up the liberty interest of the Applicant against
the interests of society. However, in weighing up the interest of justice considerations
on the unique facts and circumstances of this case, I am not persuaded on a balance
of probabilities, that the Applicant’s personal circumstances viewed cumulatively,
considering all other factors, amount to exceptional circumstances. Consequently, I
am not satisfied that the Applicant has discharged the onus that there are exceptional
circumstances that exist which in the interest of justice to permit his release on bail.
[51] In the result, after considering the submissions made by the Applicant
and the Respondent, bail is denied.
____________________________________
ANDREWS, AJ
Acting Judge of the High Court, Western Cape Division
5 2002 (1) SACR 531 (W) at 535 D-E.
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Appearances
For the Appellant: Advocate GK Mhlanga
Instructed by: Prince Attorneys
For the Respondent: Advocate L Snyman
Instructed by: The Office of the Director of Public Prosecutions: Western Cape
Date of Hearing: 09 May 2024
Date of Judgment: 31 May 2024
NB: The judgment is delivered by electronic submission to the parties and their legal
representatives.