IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NO: A255/2024
In the matter between:
BULELANI LEHLO Appellant
And
THE STATE Respondent
Coram: Parker, AJ
Matter heard on: 05 December 2024
Judgment delivered electronically on: 12 December 2024
______________________________________________________________________
JUDGMENT
PARKER, AJ:
Introduction
2
“Between a rock and a hard place1, was a report on Bail in three South African courts
published by the Open Society Foundation for South Africa and provided insights into
the considerations of bail.
[1] This is an appeal in terms of Section 65(4) of the Criminal Procedure Act
(hereinafter referred to as the CPA), challenging the decision of the Presiding
Magistrate Mr D Lakey on 18 January 2022 in the Regional Co urt in Grabouw who
refused the Appellant’s release on bail. The Appellant was arrested together with a
number of co accused on 17 July 2021 and charged with:
1.1. Robbery with Aggravating Circumstances (Firearm used).
1.2. Pointing of a firearm.
1.3. Reckless and/or Negligent Driving.
1.4. Attempted Murder.
1.5. Theft.
The court a quo
[2] The bail application was opposed by the Respondent on several grounds ,
including but not limited to the offence which fell within the ambit of Schedule 6 of the
CPA, and particularly, according to th e Investigation Officer because the Appellant
jumped out of a moving vehicle that was a getaway vehicle being pursued by the police.
The further analysis follows.
The current appeal
[3] In bringing this appeal, the Appellant contended that the Learned Magistrate had
erred and misdirected himself in refusing the Bail , notwithstanding the fact that none of
the requirements set out in section 60(4) of Act 51 of 1977 were properly established by
1 https://dullahomarinstitute.org.za/acjr/resource-centre/OSF_Bail_text_web.pdfReport prepared for the
Open Society Foundation for South Africa (OSF-SA) Report compiled by Vanja Karth
Data and legal analysis by Michael O’Donovan and Jean Redpath
3
the state. More particularly, the evidence adduced by the state did not establish the
probability that if released on bail, the Appellant would:
3.1 Endanger the safety of the public or any particular person; and/or commit
a schedule 1 offence; and/or
3.2 Attempt to evade trial;
3.3 Attempt to influence or intimidate witnesses or conceal or destroy
evidence; and/or
3.4 That his release on bail will undermine the proper functioning of the
criminal justice system including the bail system; and/or
3.5 That his release will disturb public order or compromise peace and
security.
[4] The Magistrate erred and misdirected himself by emphasizing the seriousness of
the offence . It is common cause that the Appellant has no previous convictions . The
pending case had subsequently been withdrawn . There is no real concern that if he
were to be released on bail, he would commit further offences.
[5] The Magistrate further erred and misdirected himself by failing to consider that
the appellant is a South African Citizen with strong ties to the Republic of South Africa.
He does not have any ties outside South Africa , and moreover possesses no travelling
documents. Consequently, the prospects of fleeing the country and not attending his
trial until completion, are minimum if not zero.
[6] The Learned Magistrate erred and misdirected himself by failing to take into
account that the Docket of this case is in possession and proper care of the
4
investigating officer, and therefore , the A ppellant will not have means to access and
destroy any evidence in the docket.
[7] The Learned Magistrate erred and misdirected himself by failing to take into
account that there was no evidence suggesting that the Appellant will not attempt to
influence or intimidate witnesses. According to the record, such witnesses had already
made statement s, thereby committing themselves to testifying. More so the Appellant
resides at considerable distance from the state witnesses.
[8] The Magistrate further erred and misdirected himself by not taking into
consideration the health of the accused.
Test on Appeal
[9] Section 65(4) of the Act provides for the test of a Superior Court to interfere with
a decision of the court a quo to refuse bail2.
[10] The success of any bail appeal is premised and dependent up on whether the
Appellant, in the court a quo, discharged the onus in terms of subsection 60 (11) of the
Act.3 It is self -evident that the Act in terms of section 65(4) mandates that the Court,
2 Sewela v S (731/10) [2010] ZASCA 159 (1 December 2010).
The interference with the decision by another court to refuse bail : “are circumscribed by section 65 (4) of
the Criminal Procedure Act 51 of 1977 – A court of appeal can only set aside such a decision if it is
satisfied that it is wrong . Cases such as S v Mathebula 2010 (1) SACR 55 (SCA) – Referred...)(b), that
the interests of justice permitted his release on bail. The powers of an appeal court to in terfere with the
decision by another court to refuse bail are circumscribed by section 65 (4) of the Criminal Procedure Act.
A court of appeal can only set aside such a decision if it is... 60(11)(b), that the interests of justice permit
his release on bail. I cannot find any fault with this conclusion. It is trite that the powers of an appeal court
to interfere with the decision by another court to refuse bail are circumscribed by section 65(4) of the
CPA.”
3 “Notwithstanding, any provision this Act, where an accused is charged with an office referred to-
(a) 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
interest of justice permit his or her release; ” See also S v Petersen 2008 (2) SACR (C) 355 at para [7] ;
Rudolph v State (484/2009) [2009] ZASCA 133 (30 September 2009) at para [9].
5
before setting aside any decision of bail, that the Court should be satisfied that the lower
court was wrong in its decision.4
[11] A plethora of Constitutional court judgments, amongst others S v Dlamini , S v
Dladla and Others ; S v Joubert ; S v Schieteka t5 are apposite in respect of onus in
section 60(11 ) ( b) of the CPA . These matters crystallises the Court’s approach o n
interest of justice considerations and offer guidelines for schedule 6 bail applications ,
addressing the “likelihood” and considerations related to “exceptional circumstances.” In
considering the interests of justice while balancin g the objectives of the Bill of Rights, it
is important not to unduly elevate the criteria outlined in section 4. However, the
accused's release on bail should not be permitted if the grounds specified in section 60
(4)(a) to (e) of the CPA are applicable criteria.
[12] A court hearing a bail appeal should be at liberty to conduct its own analysis of
the evidence when determining whether the appellant has discharged the onus placed
upon him in terms of s ection 60(11) (a) of the CPA. This therefore means that the
Appellant has a responsibility to prove facts that establish exceptional circumstances
warranting that he should be released on bail.
[13] In S v Bruintjies, the court of appeal held that:
“the court consider all relevant factors and determine, whether individually or
cumulatively, they warrant a finding that circumstances of an exceptional nature
exist which justify his or her release. What is exceptional cannot be defined in
isolation from the relevant facts, save to say that the Legislature clearly had in
mind circumstances which remove the Applicant from the ordinary run and which
serve at least to mitigate the serious limitation of freedom which the Legislature
4 The Criminal Procedure Act 51 of 1977, section 65(4) – The court or judge hearing the appeal shall not
set aside the decision against, which the appeal is brought, unless such court or judge is satisfied that th e
decision was wrong. In which event the court or judge shall give the decision which in its or his opinion
the lower court should have given.
5 (CCT21/98, CCT22/98, CCT2/99, CCT4/99) [1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771 (3
June 1999), para [65].
6
has attached to the commission of a schedule 6 offence. The prospect of
success may be such a circumstance, particularly, if the conviction is
demonstrably suspect”.6
[14] It was argued that there is no evidence suggesting that the Learned Magistrate
had applied section 60(9), when h e considered the grounds of opposition to the
Appellant's bail application raised by the State, in respect of section 60(4). In terms of
this section, it is argued he ought to have weighed up the interest of justice against the
rights of the Appellant to human dignity and medical care , as well as the potential
prejudice the Appel lant is likely to suffer if he were to be detained. This should include
consideration of the period that the Appellant has alr eady been in custody since the
arrest, the probable period that he would continue to remain in detention, if he were not
released on bai l, and the continued medical condition of the Appellant, or any
deterioration he may suffer.
[15] The Appellant argued that the Learned Magistrate erred in law by not considering
a cumulative reading of the provisions of section 60(11)(a) read with section 60(4)(a)-(e)
and the established jurisprudence on an open -ended list of exceptional circumstances.
The Magistrate failed to consider the possibility of a lengthy period of incarcerat ion of
the Appellant.
[16] It is trite that a court of appeal may only interfere with the decision of the court a
quo in a bail application and following S v Barber 7 and S v Vanga 8 if the Court is
satisfied that the court a quo, who had the discretion to grant bail, exerc ised that
discretion improperly and wrongfully.
“although this Court may have a different view, it should not substitute its own
view for that of the magistrate because that would be an unfair interference with
the magistrate's exercise of his discretion.”
6 S v Bruintjies (676/2002) [2003] ZASCA 4; 2003 (2) SACR 575 (SCA) (25 February 2003) at para [7]
7 1979 (4) SA 218 (D) at page 220.
8 S v Vanga 2000 (2) SACR 371(Tk) at page 372
7
[17] In S v Ho 9 it was pointed out that the case has to be decided on the material
appearing on record, held the following.
“It is therefore incumbent upon an appellant or his legal representative to place
the relevant facts fully before the magistrate when the application for bail is made
or, if any such facts are not known to such legal representative, to take steps
under ss (2) when they become known to him. It is not competent to lay them
before the appeal Court by way of affidavit, nor is it proper to attempt to introduce
them by way of statements from the Bar.”
The Appellant’s case
[18] The Investigating Officer testified that on 17 July 2021 , armed men robbed a
business known as Prime Meat Market and its employees . They took money, a laptop
and a safe key. Following, the robbery , the men exited the shop and drove off in a
Toyota Quest. Within a half an hour from the robbery commencing the vehicle was
observed on the N2 highway. The vehicle had false number plate s. A chase ensued
and the occupants in the Toyota opened fire on the police. The police returned fire at
the vehicle and the vehicle collided into a traffic light. The police managed to arrest 5
suspects, and a nother was killed. Money, firearms, a lapto p and safe key were
recovered from the vehicle. The CCTV footage from the shop was viewed and the
Appellant can be seen pointing a firearm at the employees and assaulting them. He
also directed them into the fridges. A firearm was found in the Appellant’s possession
upon arrest. The Appellant is alleged to belong to the 26 number gang.
Personal circumstances
[19] The court a quo took the Appellant’s personal circumstances as detailed in his
affidavit into consideration , noting that h e was 22 years old , unmarried , and has no
9 S v Ho 1979 (3) SA 734 (W) at page 737 E
8
minor children. At the time of t he Appellant’s arrest, he worked as an electrician,
operating as an independent contractor taking on various odd jobs earning
approximately R2 500.00 per week. He called no witnesses.
[20] The Appellant has a fixed address in Crossroads, Western Cape . The
Appellant’s pending matter of possession of stolen property i n the Wynberg Magistrates
Court, which factor was considered at the bail enquiry , has subsequently been
withdrawn. Appellant submits his release on bail will enable him to provide for his family.
The release will enable him to consult his legal representative whilst in custody . A
further factor for his release is that he was wounded during his arrest , and he suffers
from pain and carries an ostomy bag medical attention. This injury was sustained as a
result of a gunshot wound during the arrest. The Appellant however elected not to dea l
with the merits of the case.
[21] The Appellant argues that the court a quo did not attach sufficient weight to his
personal circumstances. The Respondent submits that the personal circumstances of
the Appellant does not constitute exceptional circumstances and refers the Court to S v
Botha en ‘n Ander10 where the accused advanced similar circumstances to that of the
Appellant where no exceptional circumstances was found in the face of a prima facie
case.11 Bail was refused.
The purpose of bail
[22] The underlying concept and fundamental principal of bail is the presumption of
innocence, whereby every person is presumed to be innocent until he is adjudged
guilty. The basic principle underlying the law on bail is that bail is not a punishment and
that an accused is entitled to bail where the interests of justice permit. 12 This is closely
related to the principle within the adve rsarial criminal justice system that an accused is
innocent unless proven guilty at trial. Although not intended as a punitive measure, pre -
10 S v Botha en ‘n Ander (336/01) [2001] ZASCA 146; [2002] 2 All SA 577 (A) (30 November 2001).
11 Ibid (para 27.)
12 Supra “Rock and a hard place” Part 1
9
trial incarceration nevertheless carries a penal element in that it deprives a n innocent
person of his or her freedom. In this sense the right to bail, as an extension of the
presumption of innocence, is founded on the legality principle of the rule of law. It
follows that bail, like the presumption of innocence, is a procedural human right , subject
to an evaluation of various factors.
[23] It was argued quite correctly that the basic purpose of bail, from the perspective
of society, has always been and still is to secure the reappearance of the accused for
trial. Pretrial release allows a n individual accused of crime to keep the fabric of his life
intact, to maintain employment and family ties in the event s/he is a cquitted or given a
suspended sentence or probation. It spares his/her family the hardship and indignity of
welfare and enforced separation. It permits the accused to take an active part in
planning his/her defence with counsel, locating witnesses, proving his/her capability of
staying free in the community without getting into trouble. Currently this matter is part
heard.
[24] I do not disagree that i t is important to be constantly mindful, therefore, the
purpose of bail , the liberty of an accused, the need for that purpose to be achieved
through acceptable evidence as opposed to mere speculation and rumour of a strong
state case. These interests are to be balanced against a prima facie case.
[25] In my view, the Appellant did not tak e the court a quo into his confidence. When
he failed to deal with the merits on the basis that he relied on the advice of his legal
representative, he decided to remain silent. He did not forward a compelling case for his
release on bail. He called no witnesses. The fact that the appellant did not see it proper
to bring relevant evidence before the bail court points to the fact that he is not playing
open cards with the court.
[26] It might be so, that the appellant has a clean criminal record. However, that does
not mean that this Court should turn a blind eye to the fact that he tried to jump from a
moving vehicle. With the evidence that was put by the R espondent before Court, mere
10
denial of his involvement in this crime is not enough for this Court to find in his favour. I
am of the strong view that, to simply release him on bail would be reckless in light of the
ongoing trial.
[27] Given the serious nature of the offence , the likelihood of him i nfluencing the
evidence of witnesses cannot be overlooked.
Interest of Justice Considerations
[28] The court a quo is vested with a wide discretion when deciding on an accused’s
release on bail. Whilst being forever mindful of factors such as the purpose of bail and
the deprivation of an accused person’s liberty, the onus remains on the accused to
adduce evidence and persuade the court that his or her release would be in the interest
of justice. The mere submission that he will not venture outside the Western Cape is
insufficient.
[29] The Appellant argues in the main that the court a quo erred in finding that one or
more of the grounds mentioned in section 60(4) of the CPA was present in this case.
The court a quo held that the attempted escape from the police during the arrest of the
Appellant led him to find that the re was a likelihood that the accused would evade his
trial thus being a flight r isk. The Appellant does not possess travel documents and
argues that he is not a flight risk. However, the absence of a passport does not mean
that he will therefore attend the hearing.
[30] It is not enough for him to simply deny his involvement in a crime without
proffering a prima facie version that will prove that he will be acquitted at the end of the
trial.
[31] The Appellant’s evidence that served before the magistrate was adduced on
affidavit. In my view, it is detrimentally short of the true onus. In light thereof, the
respondent has adduced a strong case before t he magistrate that convinced him not to
11
grant bail. A mere denial is not sufficient the applicant is required to adduce convincing
factual evidence to support any contention by him that the considerations do not apply
in the circumstances of Conradie v S [2] –
‘… a mere denial by an applicant for bail affected by S60 (11) (a) of the
probability of any of the considerations in S60 (4)(a) to (e) pertaining would be
insufficient to show exceptional circumstances. More is required; the applicant is
required to adduce convincing factual evidence to support any contention by him
or her that the considerations do not apply in the circumstances.’
[32] Turning to the offences that he is charged with , the following cannot be ignored .
The seriousness of the charges is prevalent in this division. Balancing the interests of
society which ought to be protected from these crimes fa r outweighs the liberty of the
Appellant.
[33] There is an overabundance of authorities that reaffirms t he limitations and
powers of a c ourt of Appeal. The ultimate consideration is whether the Magistrate, who
had the discretion to grant bail, exercised such discretion wrongly. Only one of the
considerations set out in section 60(4) of the CPA need be present to refuse bail.
[34] In my view, the court a quo, cemented its decision to refuse bail on more than
one of the factors listed in section 60(4). It is evident that the court a quo’s refusal to
grant bail is b ased on the relevant provisions of Section 60(11)(B) and the interest of
justice considerations encapsulated in Section 60(4) of the CPA was well grounded.
[35] Consequently, I am satisfied that the court a quo correctly denied the Appellant’s
application to be released on bail. The offences are serious and the personal
information placed before me does not persuade to be tantamount to being of an
exceptional nature. His health consideration given the factors referred to above does
not justify his release as medical assistance is available to him while incarcerated. He
has placed no evidence before me of the state failing in its constitutional duty to provide
12
for the Appellant’s medical needs. No evidence has been placed before this court to
show his right to adequate health care has been compromised. He has thus far been
attending the trial with seemingly no handicaps. No exceptional circumstances
regarding his health were proffered in this current appeal. Nevertheless, the Appellants
rights are safeguarded as there are avenues available to him if he has been denied
adequate health care. At this stage there is nothing before me to prove that his
constitutional right to medical attention has been hampered or denied.
[36] Whilst it is said that:
“Judicial officers continue to be caught between the proverbial rock and a hard
place when it comes to decisions on bail. They face criticism regarding the
setting of unaffordable bail and the consequent impact on overcrowding at the
same time as competing criticism regarding any form of release for those of
accused of serious offences”.13
[37] In conclusion, I am satisfied that the court a quo properly assessed and
evaluated the totality of the evidence; considered the objective facts and applicable
legal principles, the personal circumstances of the Appellant, and correctly found that
the interest of justice does not permit the Appellant’s release on bail. Therefore, I agree
with the findings of the court a quo that the Learned Magistrate arrived at a decision and
was not squeezed into a rock and a hard place as the weighing of interests exercise are
such that his release from custody would not be in the interest of justice.
[38] It is submitted that the evidence in its totality reveal the inevitable conclusion that
the Appellant failed to discharge the onus that exceptional circumstances exist that
justifies his release on bail in the interests of justice.
[39] For these reasons, I make the following order:
13 Supra page 31
13
39.1 The appellant’s bail appeal is dismissed.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for Appellant : Advocate Site Nosilela
Instructing Attorney : Mathe Attorneys
Counsel for Respondent : Advocate Leon Snyman
Instructing Attorney : Office of the Director of Public Prosecutions: Western
Cape