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[2024] ZANCHC 101
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Rosen v S (CA & R 38/24) [2024] ZANCHC 101 (25 October 2024)

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
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO:
CA & R 38/24
COURT
a quo
CASE NO:
SR 30/21
DATE
HEARD:
O1 OCTOBER 2024
DATE
DELIVERED:
25 OCTOBER 2024
Reportable:
YES

/ NO
Circulate
to Judges:
YES

/ NO
Circulate
to Magistrates:

YES / NO
Circulate
to Regional Magistrates:
YES / NO
In
the matter between:
ROSEN
,
VINCENT
Appellant
and
THE
STATE
Respondent
Coram
:
Nxumalo, J
JUDGMENT
Per
NXUMALO, J
:
[1]
This is an urgent opposed
appeal against the decision of the Court
a
quo
to decline the
appellant’s application for bail on 31 October 2023.  The
appellant, who at all material times hereto
was legally represented,
is accused number 17 in the criminal trial
in
casu
and held a
corresponding number as applicant
a
quo.
He was first
arrested on 02 September 2022, more than a year ago.  He was
initially charged with 7 counts of attempted murder
and the unlawful
possession of firearms and ammunition.  He thereafter applied
for bail and was granted same in the amount
of R1 000.00.
Upon payment of the said amount, he was released on 04 November
2022.
[2]
On 04 May 2023 the appellant
was re-arrested on additional charges allegedly arising from the same
facts and circumstances pertaining
to the original charges.  It
is therefore common cause that none of the allegations against which
the additional charges are
predicated pertain to the period during
his bail.  It is also so that at all material times hereto, he
complied with the said
bail terms and conditions, until he was
re-arrested.  One of the conditions of the said bail was house
arrest.
[3]
The charges pertaining to the
appellant are Counts 1 to 3, 7, and 30 to 37.  It was common
cause between the parties from the
genesis of the bail application
a
quo
that the implicated
counts fall under Schedule 5 of the
CRIMINAL
PROCEDURE ACT
, 51 of 1977
(“
the
CPA
”),
and not Schedule 6 thereof.
[4]
On 23 October 2023 the
appellant deposed to a founding affidavit in support of his bail
application
a quo
.
This affidavit was admitted in those proceedings as Exhibit “
F
”.
The respondent, for its own part, mounted its opposition on the
affidavit of one Captain Riaan Baartman of the South
African Police
Services.  Captain Baartman is the lead investigator of the
multi-disciplinary team under the command of one
Brigadier SJ
Mojela.  Significantly, it is so that Captain Baartman’s
affidavit is dated 29 August 2023, which predates
the appellant’s.
A brief overview of these affidavits is imperative and will be done
in due course.
[5]
Presently, it may only be
pertinent to point out that Counts 1 to 3, which pertain to all 21
accused are the following: Aiding and
abetting criminal gang activity
in contravention of Section 9(1)(a), read with Sections 1, 10 and 11
of the
PREVENTION OF
ORGANISED CRIME ACT
121 of
1998 (“
the
POCA
”);
bringing about or performing acts of violence or criminal activity by
a criminal gang; and causing or contributing to
a pattern of gang
activity.  Count 7 is attempted murder.  Counts 30 to 37
range between pointing of a firearm; malicious
injury to property;
common assault and assault with intent to do grievous bodily harm;
and unlawful possession of firearms and
ammunition.  The latter
counts arise from incidents which allegedly happened on 03 August
2021.
[6]
The following can be surmised
from Exhibit “
F
”,
in relevant parts.  The appellant is single, and a locally born
and bred citizen of the Republic.  He was born
on 08 August
1989, which means he is currently 35-years of age.  His highest
educational qualification is grade 12.
Post-matric, he obtained
a certain security grading, which qualified him to work as a security
officer.
[7]
During 2017, whilst employed at
Vermeulen’s Hardware Shop, Kimberley; he   sustained
serious injuries to one of
his legs.  As a result, he is
currently disabled and on a disability grant which he received
monthly until his first arrest
on 02 September 2022.  His father
died when he was only 4-years old.  He is a father to a
10-year-old girl-child who
is currently staying with her grandparents
in Roodepan.
[8]
He was maintaining the said
child whilst employed.  Before his re-arrest, he resided in a
backyard flat at 1[...] C[...] Road
Kimberley, for a period of
3 years.  He was, however, informed whilst in custody after
being re-arrested, that some people
broke into the main house at the
said address, stole and damaged some moveable properties and also
damaged the said premises.
For this reason he undertook to
reside with his mother if he were to be granted bail.  He
averred, without contradiction on
the part of the respondent, that
his mother is currently residing at 3[...] T[...] Street,
Jacksonville, Kimberley.  She is
employed as a general worker at
the Department of Public Works for the past 10 years.
[9]
He also averred that when he
was first arrested on 02 September 2022, he was informed that the
charges proffered against him were
only 7 counts of possession of
illegal firearms and ammunition allegedly committed on 17 June 2021.
When he was arrested
with some of his co-accused in this matter, a
certain lady and one Felicia Peters, the latter whom he is informed
has turned State
witness, had already appeared for more than one year
in Court.  The additional charges proffered against him are
discharging
a firearm in a public place and the possession of illegal
firearm and ammunition.
[10]
Whilst in his first bail
application mention was made of some of the additional counts, he was
then not charged with same.
He is of the opinion that the State
does not have a strong case against him on any of the counts.
He denies being a member
of any gang or group of people; organisation
or association with the aim of committing criminal offences.  He
therefore intends
pleading not guilty to all the charges brought
against him.
[11]
He has no previous convictions;
was not under any correctional supervision or parole nor has he
breached any interdict.  Neither
has any interdict been issued
against him, at all material times hereto.  He does not have a
passport, nor has he ever been
outside the borders of the Republic.
He was advised that to the extent that Counts 1 to 3 fall under
Schedule 5 of the CPA,
he only had to show that his release on bail
was in the interest of justice.
[12]
Since he has been seriously
injured in the past, as alluded to above, he is still suffering pain
and cannot obtain the necessary
medical attention expeditiously as
and when necessary because of prison overcrowding.  He was
informed that the matter is
to be transferred to this Court for trial
and that the respondent is yet to obtain the requisite authorisation
to sustain Counts
1 to 3 from the National Director of Public
Prosecution (“
the
NDPP
”);
regard being had to Section 2(4) of
POCA
.
He has also been advised that same has not been done yet and might
take a while.  He has further been advised that
a trial
involving the 21 co-accused could take years to be finalised because
of its inherent complexities and that consultations,
whilst possible,
are tedious in prison.
[13]
He has no previous convictions
or any pending matters.  He is of the opinion that the offences
of which he is charged are not
likely to induce any sense of shock or
outrage in the community where the offences have allegedly been
committed.  He averred
that his release on bail would not lead
to public disorder or jeopardise public confidence in the criminal
justice system.
That his release on bail would also not
jeopardise his safety or undermine peace and security among members
of the public.
He also averred that if he is granted bail he
would be able to pay an amount of R2 000.00.  Furthermore,
if the amount
is higher, his family could help him to raise the
difference.
[14]
If he is granted bail he is
willing to accept any bail condition that the Court may decide upon.
He undertook to attend all
proceedings until the matter is finalised;
never to put the safety of the public or any person in danger and
never to commit any
offence.  He further undertook not to
intimidate or influence any witness involved in this case or
communicate with any witness
in this case; withhold from doing
anything that will undermine or jeopardise the criminal justice
system; report once a week at
the nearest police station or
periodically if ordered to do so; and not to change his given address
without notifying the investigating
officer of his intention to do
so.  That he has been advised and understands the consequences
of not complying with any of
the conditions imposed.
[15]
The above factors cumulatively,
and the fact that there is no likelihood that any of the factors set
out in Section 60(4)(a) to
(e) of the
CPA
will occur, constitute exceptional circumstances warranting in the
interest of justice that bail be granted to him pending the

finalisation of the trial.  In the premise, he submitted that
there is no reason why he must stay in prison any longer.
[16]
In his evidence before the
Court
a quo
,
Captain Baartman, for his own part, did not seriously contradict any
substantial aspect of the appellant’s evidence.
The only
factor he sought to gainsay is the veracity of the appellant’s
address; the strong evidence against the accused
as a whole; the
seriousness of the alleged crimes and the concomitant sentences.
He,
inter-alia
,
also confirmed the applicant’s previous address and that same
is no more being occupied and that when the appellant was
granted his
first bail, he was placed under house arrest at 1[...] C[...] Roads,
Rhodesdene; an alternative to his previous address.
[17]
Significantly, in paragraph 11
of his affidavit, Captain Baartman baldly and generically submits
that the mere fact that some applicants
gave their previous address
as their current addresses, at all material times hereto, made it
likely that they would become involved
in crime again.  It is
common cause that the alternative address suggested by the appellant
was never denied or verified by
the respondent, who could have easily
and speedily done so during the bail application proceedings
a
quo
.  This, to date,
unfortunately has not been done.
[18]
The impugned judgment in
relevant part runs as follows:
“
Wat
beskuldige nommer 17 betref, Meneer Vincent Rosin (sic) word sy
omstandighede uitgesit in bewysstuk F,
dit
is ook n misdryf wat val onder Skedule 6 van die Strafproseswet…
In die omstandighede is ek van mening dat dit ‘n
bepaalde
risiko sal inhou om beskuldige nommer 17… dan op borgtog,
verdere borgtog vry te laat en in lig van sy optrede
in die verlede
en sy borgaansoek word dan ook deur die hof afgewys.  Ek is van
mening dat daar nie buitengewone omstandighede
bestaan wat sy
vrylating regverdig nie.”
[1]
[19]
The appellant’s grounds
of appeal, which were delivered on 04 July 2024, are in sum that the
Court
a quo
erred in the following respect:
19.1.
finding during the judgment
stage that the appellant is charged with offences that fall under
Schedule 6 of the Schedules regulating
bail application, while it was
agreed between the parties before the application commenced that the
applicable schedule for the
application of the appellant is Schedule
5;
19.2.
not taking into account and/or
underemphasising the fact that the appellant was already granted bail
on the counts of attempted
murder and the possession of firearms and
ammunition and that the respondent later decided to join him with
other accused and consequently
to join him in Counts 1 to 3, and
added offences that were allegedly committed during 2021;
19.3.
finding that there will be
certain risks in granting bail to the appellant and therefore found
that it is not in the interest of
justice to grant him bail;
19.4.
not taking into account and/or
to underemphasise the fact that while the applicant was out on bail
for more than one year, he complied
with all the conditions that were
applicable to his release;
19.5.
not finding that to release the
appellant in the circumstances on bail will be in the interest of
justice; and
19.6.
not granting bail to the
appellant pending the finalisation of his trial.
[20]
As alluded to above, it is so
that the appellant intends to plead not guilty and denied that any of
the factors contemplated in
Section 60(4) of the
CPA
,
is likely to occur, if he is released on bail.  The said Section
expressly stipulates as follows:
“
60(4)
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,
any person against whom the
offence in question was allegedly committed, or any other particular
person or will commit a Schedule
1 offence;
(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.”
[21]      The
nub of the appellant’s argument is therefore that the Court
a
quo
misdirected itself in finding that the offences proffered
against him fall under Schedule 6 of the
CPA
.  That this
finding stands in stark contrast with what has been agreed between
the parties from the very genesis of the bail
proceedings that same
fall under Schedule 5.  That the Court
a quo
materially
misdirected itself in refusing bail to the appellant on the sole
ground that there are “certain risks” involved
in
releasing him on bail.  That in the premise, the impugned
decision and order were so materially wrong that same fell to
be
overturned on appeal.
[22]      The
foregoing contention is predicated against the following factual
backdrop, according to the
appellant.  He was initially arrested
on 02 September 2022 on 7 counts of attempted murder and other counts
of possession
of illegal firearms and ammunition.  That these
offences were allegedly committed on 17 June 2021- more than one year
before
his arrest.  Some of his co-accused at that stage had
already repeatedly appeared for almost one year in the case.
They
were at that stage not charged with attempted murder.  The
charges were then predicated against the
FIREARMS CONTROL ACT
in that
contra
this Act, they were found in possession of
firearms and ammunition without licenses and discharged the said
firearms in a public
area.
[23]
When he was arrested on 02 September 2022, the charges were amended
to attempted murder and only
7 counts of attempted murder.  A
further count of attempted murder is now added in this case to the
charges which allegedly
occurred as far back as 17 June 2021.
That whilst during his bail application on these charges, mention was
made of incidents
that happened far back on 03 August 2021, no
charges were proffered against him for these alleged incidents.
He was thereafter
released on R1000.00 bail on strict conditions,
including house arrest, on 04 November 2022.
[24]
During May 2023, the respondent decided to consolidate all the cases
against him and his co-accused
in the current case and to refer same
to the High Court for trial.  New charges of gang-related
activities, the extra count
of attempted murder with regard to the
incidents that allegedly occurred on 17 June 2021, as well as other
charges for the incidents
that allegedly occurred on 03 August 2021,
were only then formulated and added to the counts against him.
This notwithstanding
the fact that all these allegations were already
known and referred to during the first bail application.
[25]
That it is nowhere alleged that he was involved in any further
unlawful activities after he was
released on bail on 04 November
2022.  That it is so simply because he complied with all his
bail conditions until he was
rearrested in 2023.  That the
Respondent solely relied on the affidavit of the Investigating
Officer, Captain Baartman
[2]
of which the following aspects are of importance.  In his
statement he deals with the incidents that occurred in separate

compartments and refers to them as gang-related in Counts 1 to 9.
He is implicated only in the third and the fifth alleged
occasions.
[26]      The
appellant maintained as follows: that bail is opposed simply because
of the alleged seriousness
of the offences and the alleged strength
of the respondent’s case.  That the applicant would become
involved in crime
again, solely because he has given his erstwhile
address as his permanent address.  That there is no indication
anywhere that
he is a flight risk or that he may interfere with
investigations or influence witnesses.  The appellant also
strenuously decried
the fact that the Court
a quo
ignored
and/or underplayed the fact that he was granted bail previously on
the same facts.  That it is so simply because,
notwithstanding
this, the Court
a quo
volte-face
refused to grant him
bail on the sole basis that there were “certain risks” in
granting him bail this time around.
[27]      It
is common cause that the charges proffered against the appellant in
this matter fall within
the ambit of Schedule 5 of the
CPA
, as
opposed to Schedule 6, thereof.  It is so since the former
expressly regulates any offence referred to in Sections
2, 4, 5, 6 or
9 of the
POCA
, of which some, if not all, are implicated with
regard to the charges the appellant is currently facing.  So
much was correctly
conceded from the onset of the bail proceedings in
the Court
a quo
and again in this Court on behalf of the
respondent.  It therefore was never in dispute that the
appellant’s bail falls
within the ambit of Schedule 5 of
the
CPA
.  This notwithstanding, the Court
a quo
queerly found that the bail application of the applicant falls within
the ambit of Schedule 6 of the
CPA
.
[28]      The
respondent, for its own part,
inter-alia
submitted as
follows.  That the appeal stood to be dismissed because regard
being had to the facts and circumstances of this
case, the Court
a
quo
ultimately did not misdirect itself in refusing the appellant
bail.  It maintained that it is so because the error of the
Court
a quo
notwithstanding,
the
appellant did not discharge the
onus
of proving on a balance of probabilities that his release on bail
would be in the interest of justice and therefore the second
and
third ground for appeal should be dismissed.
[29]
Notwithstanding that in
its judgment the presiding Magistrate erroneously referred to
Schedule 6, as well as the finding that the
appellant bore the onus
of proving exceptional circumstances, t
he
Court
a
quo
,
in deciding whether the applicant should be released on bail,
considered all the personal circumstances of the appellant.

That the facts which were highlighted during the bail proceedings
weighed more than the personal circumstances of the appellant.

The Court
a
quo
correctly
found that there are no exceptional circumstances present in the case
of the appellant.
[30]
That there is a very strong case against the appellant because the
State will not only rely on
the evidence of a Section 204 witness,
but also on that of other eye witnesses.  The matter was dealt
with in terms of Schedule
5 from the onset, notwithstanding the fact
that the presiding magistrate applied the wrong schedule during his
judgment.
[31]
That there is no confirmed address for the appellant.  That it
is so because whilst in his
statement, he indicated that he will
reside with his mother at 3[...] T[...] Street, Jacksonville,
Roodepan, should bail be granted.
This address had not been
confirmed by the Investigating Officer, as it was only made available
during the bail application proceedings.
The Investigating
Officer indicated that the appellant gave 1[...] C[...] Road as his
place of residence.  This address was
linked to the gang
activities of the Hollanders, a gang which the appellant is a member
of.  The mere fact that the appellant
gave this address
indicates a likelihood that he will commit further offences.
[32]
That it is apparent from the judgment of the Magistrate that he
considered a broader spectrum
of factors which led him to come to the
conclusion that the appellant was not a suitable candidate to be
admitted to bail.
Having regard to all the abovementioned
factors cumulatively, the Magistrate was not wrong in finding that
the interests of justice
do not permit his release on bail.
That it is so since the evidence led dealt with the onus in terms of
Section 60(1)(a) of the
CPA
.
[33]
That in any event there is no need for remitting the matter to the
Court
a quo
for reconsideration because this Court is in a
position to determine the issues and to give the decision which the
lower Court
should have given.  In doing so under the
circumstances of this matter, the appellant will not be prejudiced,
and no injustice
will be occasioned.
[34]
Firstly, it behoves
emphasis that the appellant, like everyone else, is equal before the
law and has the right to equal protection
and benefit of the law.
Coterminous to the foregoing is the right to the full and equal
enjoyment of all rights and freedoms
entrenched in the Constitution.
These rights obviously include the right to be released from
detention if the interests of
justice permit, subject of course to
reasonable conditions.
[3]
It is also so that the right to freedom and security of the person is
coterminous to the right not to be deprived of freedom
arbitrarily
and without just cause and not to be detained without trial.
[4]
[35]
Secondly, it is so that these rights may be limited only in terms of
law of general application to
the extent that the limitation is
reasonable and justifiable in an open and democratic society, based
on human dignity, equality
and freedom; taking into account all
relevant factors; including those listed in Section 36(1) of the
Constitution.  Thirdly,
the appellant is to be presumed innocent
until the contrary is proved beyond reasonable doubt by the State.
Fourthly, except
as provided in the said section or any other
provision of the Constitution, no law may limit any right entrenched
in the Bill of
Rights.
[5]
[36]
Section 60(1)(a) of the
CPA
, for its own part, expressly
stipulates as follows with regard to bail applications of accused in
Court:
“
An accused who is in custody
in respect of an offence shall, subject to the provisions of Section
50(6),
be entitled to
be released on bail at any stage preceding his or her conviction in
respect of such offence, if the Court is satisfied
that the interests
of justice so permit.
”
[6]
[37]
Section 60(11)(a) and (b) of the
CPA
, for its own part,
discretely and unambiguously stipulate as follows, in turn:
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence-
(a)
referred to
in
Schedule 6
, the
Court shall order that the accused 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 permit his or
her release;
(b)    referred to
in Schedule 5, but
not in Schedule 6
,
the Court shall order that the accused 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 the interests
of
justice permit his or her release.
"
[7]
[38]     In
S v Branco
2002 (1) SACR 531
(W) Cachalia AJ, enjoined that:
“
The fundamental objective of
the institution of bail in a democratic society based on freedom is
to maximize personal liberty.
The proper approach to a decision
in a bail application is that: ‘
The
Court will always grant bail where possible and will lean in favour
of and not against the liberty of the subject provided that
it is
clear that the interest of justice will not be prejudiced
thereby’.
”
[8]
[39]      Our
Courts are thus obliged, when seized with the question of whether or
not to release a detainee
on bail, to approach the matter from the
perspective that freedom is a precious right entrenched in the Bill
of Rights
vide
Section 35(1)(f) of the Constitution.
This right should only be lawfully derogated if, and only if, the
interests of justice
deems meet.  They should thus always
consider suitable conditions as alternative to the denial of bail.
[40]
Section 60(11
)(b)
and (c) of the
CPA
discretely and expressly stipulate that notwithstanding any provision
in the
CPA
,
where an accused is charged with an offence referred to in Schedule
5, the Court shall order that the accused 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 the interests
of
justice permit his or her release.”
[41]
Whilst it is so that a bail application for offences under Schedule 5
clearly places the onus
upon an applicant
to
adduce evidence which satisfies the Court that the “interests
of justice” permit his or her release, it is further
so that
bail application for Schedule 6 offences also places the onus upon
the applicant to adduce evidence which satisfies the
Court that
“exceptional circumstances” exist which in the interests
of justice permit his or her release.  Apart
from that, the
exercise to determine whether bail should be granted is no different
to that provided for in Section 60(4) to (9)
of the
CPA
,
or required by Section 35(1)(f) of the Constitution.  It thus
remains clear that an accused on a Schedule 5 offence will
be granted
bail if he or she can show merely that the “interests of
justice” permit such grant and not on evincing
“exceptional
circumstances” as contemplated in an application regulated by
Schedule 6 of the
CPA
-
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)
(1999 (4) SA 623
;
1999 (7) BCLR 771
; [1999] ZACC (8)
per
Kriegler J.
[42]      It
can be deduced from the foregoing that what remains at the heart of
this appeal is whether
the Court
a
quo
exercised its
discretion wrongly in any material way in relation to either fact or
law in refusing the appellant bail on the bases
that there will be
“certain risks” in granting him bail this time around and
that he did not evince any exceptional
circumstances for the Court to
do grant him bail.
[9]
[43]      It
is so in our law that it is desirable, given the drastic nature of
the refusal of bail and,
constitutionally speaking, it is imperative
that all peremptory procedural provisions should be closely adhered
to by our Courts.
To this extent it is indeed mandatory that
“proof of the nature of the charges should occur with some
formality, either at
the commencement of proceedings or as soon
thereafter as possible”-
S
v Joseph
2001 (1) SACR
659
(C);
S v Nwabunwanne
2017 (2) SACR 124
(NCK).
[44]      It
is trite that it is only through the correct procedure that just
decisions are generally reached.
The interests of justice thus
cannot be divorced from the procedure through which the impugned
decision was arrived at.  It
is so since the proper
identification of the right schedule is fundamental to the question
whether it was in the interest of justice
for the appellant to be
released on bail or not.
[45]      It
is also so that in our law a Court cannot find that the refusal of
bail is in the interest
of justice merely because there are certain
unidentified risks or possibility that one or more of the
consequences mentioned in
Section 60(4) will result.  A finding
on the probabilities must be made.  The Court cannot grope in
the dark and speculate
because justice cannot be conceived in the
dark – it is not a cloak and dagger issue. Unless and until it
can be found that
one or more of the consequences will probably
occur, detention of the accused is not in the interest of justice,
and the accused
should be released
-
S v Diale and Another
2013 (2) SACR 85
(GNP).
[46]      In
S v Dlamini; S v Dladla and Other; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) the Constitutional Court held on page 79
paragraph 53:
“…
The
important proviso throughout is that there has to be a likelihood,
i.e. a probability, that such risk will materialise.
A
possibility or suspicion will not suffice.  At the same time, a
finding that there is indeed such a likelihood is no more
than a
factor, to be weighed with all others, in deciding what the interests
of justice are.”
[47]
It is clear from the quotation by the Court
a quo
that it
moved from the wrong premise.  It is the very same wrong premise
that made it concentrate only on the seriousness
of the offence,
without dealing with the case of whether, if released on bail, the
appellant would not stand trial.  It should
be remembered that
the appellant is to be presumed innocent until the contrary is
proved.  It bears emphasis that, even where
the evidence appears
to be strong, one should still be mindful of the fact that one does
not have to deal with a bail application
as if guilt has already been
proved.
[48]
Prima facie
evidence is subject to being tested during trial.
The impact of such
prima facie
evidence, in a bail application
should be seen to be minimised by lack of evidence of the likelihood
that, if released on bail,
the accused will attempt to influence or
intimidate witnesses or attempt to or destroy evidence.  The
likelihood of the appellant
evading trial, other than to suggest a
strong case against him, was not established.
[49]
This misdirection is all the more material, regard being had to the
fact that the appellant fully
abided with all the bail terms and
conditions imposed after being granted the first bail and put under
house arrest at an address
other than his erstwhile.  It is so
in our law that it is incumbent on any Court determining whether it
is in the interests
of justice to permit the release of an accused on
bail, to grant him a reasonable opportunity to adduce evidence which
satisfies
such a Court that the interests of justice permit his or
her release. It also so that such a court may in respect of matters
that
are not in dispute between the accused and the prosecution
acquire in an informal manner, the information that is needed, for
its
decision or order regarding bail. It follows therefore that that
such a Court should always consider suitable conditions as an
alternative to the denial of bail.
[50]
In
S
v Acheson
1991 (2) SA 805
(NM), Mahomed AJ (as he then was) for his own part,
emphasised as follows; that:
“
An accused person cannot be
kept in detention pending his trial as a form of
anticipatory
punishment.  The presumption of the law is that he is innocent
until his guilt has been established in Court.
The
Court will therefore ordinarily grant bail to an accused person
unless this is likely to prejudice the ends of justice…”
[10]
In
S v Branco
2002 (1)
SACR 531
(W
)
at 537 A-B, the Court observed thus:
“
Finally, a Court should
always consider suitable conditions as an alternative to the denial
of bail.
Conversely,
where no consideration is given to the application of suitable
conditions as an alternative to incarceration, this may
lead to a
failure to exercise a proper discretion”
[11]
[51]      I
t
is also
clear from the
quotation by the Court
a quo
above that it moved from the wrong premise that the appellant’s
pending charges fell under Schedule 6 and not 5 of the
CPA
.
No doubt it is that wrong premise and nothing else that clearly led
it to erroneously conclude that the appellant failed
to prove the
existence of exceptional circumstances justifying his release on
bail.
It
can also be deduced from the decision of the Court
a
quo
that it did not for a moment grant the appellant a reasonable
opportunity to verify his mother’s address or whether she was

prepared to accommodate him.  This address was neither denied
nor confirmed by the respondent.  The parties were in agreement

during this hearing that this could have been done expeditiously.
The Constitution enjoins all constitutional obligations
to be
performed diligently and without delay.
[12]
[52]      it
should be noted that if a court is of the opinion that it does not
have reliable or sufficient
information or evidence at its disposal
or that it lacks certain important information or evidence at its
disposal or that it lacks
certain important information to reach a
decision on the bail application, the presiding officer shall order
that such information
or evidence be placed before the court.
[13]
As alluded elsewhere, the court a quo did not invoke these powers to
verify or debunk the appellant’s proposed address. Neither
does
the court a quo seem to have given any serious consideration to the
appellant’s state of health.
[53]      T
he
appellant was therefore not given a reasonable opportunity to adduce
evidence which satisfies the Court that the interests of
justice
permit his release mainly due to the fallacy that it is incumbent on
him to evince “exceptional circumstances”,
instead of
whether it is in the interests of justice that he be released on
bail.  The Court
a
quo
could thus not be said to have considered all reasonable or suitable
conditions as
alternatives
to the denial of bail.
[54]
O
ur courts are
enjoined to defend not only the Constitution generically, but in
particular to uphold those fundamental rights entrenched
in it.
The Apex Court in
S v
Senwedi
2022
(1) SACR 229
(CC) seminally opined as follows, in this regard a
t
paragraph 27; to
wit
:
“
Our Courts must defend and
uphold the Constitution and the rights entrenched in it.
One
of the most important rights, from a historical perspective, is
unquestionably the deprivation of an individual’s liberty.

This Court said in Ferreira that ‘(c) conceptually, individual
freedom is a core right in the panoply of human rights.’
The
apartheid regime repulsively and capriciously deprived people of
their freedom under illegitimate legislation that paid no respect
to
the rights to freedom and security of the person.  We are
therefore constrained to jealously guard the liberty of a person

under our Constitution, particularly in terms of s 12 of the Bill of
Rights.”
[55]
Given the facts and circumstances of this case, this Court is of the
considered opinion that
the
Court
a quo
exercised its discretion wrongly in a material way in relation to
both fact and law in refusing the appellant bail on the bases
that
there will be certain unidentified risks in granting him bail this
time around and that he did not evince any exceptional
circumstances
for the Court
a quo
to do grant him bail.
[14]
[56]      In the
premise, the following order must issue:
(a)
THE APPEAL IS UPHELD.
(b)
THE COURT
A
QUO’S
ORDER
REFUSING THE APPELLANT BAIL IS HEREBY SET ASIDE.
(c)
THE APPELLANT IS HEREBY
GRANTED BAIL IN THE AMOUNT OF R10 000.00 (TEN THOUSAND RAND) ON
THE FOLLOWING CONDITIONS:
i.
THE APPELLANT SHALL
ATTEND COURT AT ALL TIMES, UP UNTIL THE FINALISATION OF THE TRIAL.
ii.
THE APPELLANT SHALL NOT
APPROACH, CONTACT, COMMUNICATE, INTIMIDATE AND/OR INTERFERE DIRECTLY
OR INDIRECTLY BY ANY MEANS WITH ANY
PERSONS APPEARING ON THE WITNESS
LIST THAT THE INVESTIGATING OFFICER, CAPTAIN BAARTMAN SHALL SERVE ON
HIM, FROM TIME TO TIME.
iii.
THE APPELLANT SHALL NOT
INTERFERE DIRECTLY AND/OR INDIRECTLY WITH ANY EVIDENCE RELEVANT TO
THE MATTER, UNTIL SAME IS FINALISED.
iv.
THE APPELLANT IS HEREBY
PUT UNDER HOUSE ARREST AT 3[...] T[...] STREET, JACKSONVILLE,
KIMBERLEY FROM THE DATE OF HIS BAIL BEING
POSTED, TILL THE MATTER IS
FINALISED; PROVIDED THAT THE SAID ADDRESS IS VERIFIED BY THE
INVESTIGATING OFFICER AND THE APPELLANT’S
MOTHER CONSENTS TO
THE APPELLANT RESIDING AT THE SAID ADDRESS IN TERMS OF THIS ORDER.
v.
THE APPELLANT SHALL NOT
LEAVE THE ABOVE MENTIONED ADDRESS, WITHOUT WRITTEN PERMISSION OF THE
ABOVEMENTIONED INVESTIGATING OFFICER.
APS
NXUMALO
JUDGE
OF THE HIGH COURT
OF
SOUTH AFRICA
NORTHERN
CAPE DIVISION
KIMBERLEY
For
Appellant:
ADV VAN HEERDEN
On
instruction of:
Written Heads
of Argument by Mr IJ Nel
Mathewson and
Mathewson Inc, Kimberley
For
Respondent:
ADV E KRUGER
On
instruction of:
The
Director of Public Prosecutions
[1]
Emphasis
supplied
[2]
“
Baartman”
[3]
See
ss 9 and 35(1)(f), of the
Constitution
of the Republic of South Africa, 1996 (“
the
Constitution
”
)
[4]
See
s 12,
ibid
[5]
See
36(2),
ibid
[6]
Emphasis
supplied
[7]
Emphasis
supplied
[8]
Emphasis
supplied
[9]
S
v Barber
1979
(4) SA 218
(D) at 220E-H
[10]
Emphasis
supplied
[11]
Emphasis
supplied
[12]
See
Section 237 of the Constitution
[13]
See
s60(3), CPA
[14]
See
S
v Barber
1979
(4) SA 218
(D) at 220 E-H