IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN) 1
Case no: CC40/2020
In the matter between:
BULELANI YOSANA
and
THE DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE
Heard: 28 March 2025 and 12 May 2025
Summary: Bail application based on new facts.
ORDER
The application is dismissed APPLICANT
RESPONDENT
2
JUDGMENT
Nziweni, J:
Introduction and background
[1] The applicant has brought this current bail application on the basis that new facts
have arisen since the initial bail court [Regional Court] refused to admit him on bail,
pending the finalisation of his trial. The applicant is currently facing a variety of
offences arising out of an incident which occurred on 22 February 2022. The
offences include a contravention of section 18 (2} (a) of the Riotous Assemblies
Act, Act 17 of 1956 (conspiracy to murder) and murder.
[2] It is the applicant's contention that there are new developments that were not
placed before the Regional Court Magistrate during his original bail hearing. The
applicant further asserts that the new facts he is currently relying on create a
change in the circumstances that led to his first bail application being refused on
07 July 2022.
[3] It is common cause that pursuant to the Regional Court Magistrate's refusal to
admit the applicant on bail; he appealed that decision. On 23 January 2023, the
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applicant's appeal was dismissed. Since the dismissal of the applicant's appeal,
the applicant case has been transferred to this Division for the hearing of the trial.
Hence, this second bail application is heard by this Court.
[4] In his notice of the application for leave to appeal, the applicant has set forth
grounds that exist to support his application for bail on new facts. The applicant
advanced three grounds, which he characterises as new facts:
i. The fact that a state witness that deposed to an affidavit in terms of
section 204 of the Criminal Procedure Act, Act 51 of 1977,
subsequently deposed to a recanting • affidavit recanting the
allegation [he] made in the section 204 affidavit.
ii. The fact that [the applicant's] bank account is facing closure due to
non-compliance with Financial Intelligence Centre Act, Act 38 of
2001 ("FICA") and regulations; and
iii. The fact that no trial date has been set.
[5] During the hearing of this bail application , the thrust of Mr Booth's (the applicant's
attorney] argument centred mainly upon the ground related to the strength of the
State's case. However, though Mr Booth put this submission at the forefront of his
argument he also specifically mentioned .that he has not abandoned the other two
grounds.
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[6] The application was initially heard in court on 28 March 2025, but it had to be
postponed sine die for the applicant to obtain a missing part of the record. On 28
March 2025, the bail hearing was postponed sine die to afford the applicant to file
a complete record. On 07 May 2025, the applicant and the State filed their
supplemented papers. On 12 May 2025, after the parties filed their further papers
and submissions, it was agreed that it was not necessary to go back to court for
further hearing of the matter, and that I could further decide [the matter] on the
papers.
Parties' submissions
[7] According to the applicant, the prevailing facts in the State's case are that there
are evidentiary problems which affect the strength of the State's case, During the
hearing, the essence of Mr Booth's argument was that the State's star and only
witness linking the applicant to the case has since recanted his statement. The
applicant further argues that the recanting version was never placed before the
magistrate during the original bail hearing.
(8] According to the applicant, during the hearing of the bail application, the State in
opposing the applicant's admittance on bail and in its attempt to show the strength
of the State's case, submitted an investigating officer's affidavit. In the investigating
officer's affidavit, the State relied mainly upon the existence of the witness [in terms
5
of the Criminal Procedure Act 51 of 1977] ("section 204 witness") whom the State
intends to call to testify against the applicant in the trial.
[9] Mr Booth submitted that following the bail application, hearing and the appeal, they
discovered a statement in which the section 204 witness recanted what he stated
in his section 204 affidavit. According to Mr Booth, this recanting statement was
never discovered by the State, and as such, it alters the overall picture of the
State's case.
[1 0] In this [newly] discovered statement, the section 204 witness is recanting what he
initially told the police about the involvement of the applicant in the commission of
the offences the applicant is arraigned on. Mr Booth advanced the argument that
the State case is based primarily on the evidence of the section 204 witness. Mr
Booth's argument postulates that; if the section 204 witness has recanted his
original police affidavit, wherein he originally implicated the applicant in the crimes,
the necessary corollary is that the State's case has since been considerably
weakened. According to the applicant, this discovery presents an insurmountable
hurdle for the State.
[11] The State does not dispute that the section 204 witness has since recanted his
first key pre-trial statement. According to the State's heads of argument, the
section 204 witness filed a recanting statement after the residence of the witness
was visited by the applicant and after the applicant's arrest. To this end, the State
specifical contends that the recanting statement is a product of interference with a
state witness.
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[ 12] Equally, the State holds the view that notwithstanding the fact that the section 204
witness has since recanted, it [the State] still has a prima facie case against the
applicant. The State holds the view that the section 204 statement is corroborated
and supported by other specific and articulable objective forensic evidence,
whereas the recanting statement is not. Thus, in these circumstances , the State
argues that besides the section 204 witness account, it has other evidence which
the prosecution proposed to rely upon.
[13] Mr Rudolph, on behalf of the State, further insists that though the section 204
witness filed two affidavits, only at the trial stage would the veracity of the
statements and the viva voce evidence be tested. The State also argues that the
section 204 witness would indicate during the trial why his second statement differs
in certain respects from his initial statement.
[14] Mr Rudolph further asserts that the applicant is seeking this Court to make
credibility findings that it cannot make as the section 204 witness did not testify
before this Court. The State urges further that; if a section 204 witness disavows a
previous statement made, that does not render it impossible for the State to
proceed with prosecution against an accused implicated by such 204 witness.
[15] Mr Booth presented a counter argument to the State's submission and stated that
there are no eyewitness accounts that place the applicant on the scene. Hence, it
is the applicant's claim that due to the recanting statement there is insufficient
evidence.
7
Evaluation
The change in aP,plicant's personal circumstances
[16] As far as one can tell, it is well established canon that arbitrary deprivation of
liberty is unacceptable. It should be noted that, apart from our Constitution 's
provisions that have measures that seek to ensure that the liberty of a person is
protected, it is also paramount in terms of international law and human rights law,
that there should never be arbitrary deprivation of liberty.
[17] Pre•trial detention has inherent disadvantages for an accused person and
excessive trial delay exacerbates them.
[18] Deprivation of liberty is a grave violation of a very fundamental human right. Thus,
it is of utmost importance that there should be valid grounds that justify the
departure from a constitutional order and a continued deprivation of an accused
person's liberty. No one can deny that the life of the applicant has been on hold
since his incarceration and the delay in bringing the matter to trial causes some
inherent prejudice.
[19] As it turns out, the applicant avers that Capitec Bank has issued a warning that
his bank account will be closed unless he updates his FICA details. According to
the applicant, he can only be able to update his FICA details by attending the bank
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in person. The applicant further asserts that should his bank close his account this
would jeopardise his family's well-being.
[20] Indeed, it was in this vein that, as I have previously observed, no one can deny
that the time spent in custody awaiting trial is bound to cause certain disruptions
in the applicant's life including his family and might place them at a disadvantage.
[21] The State is strenuously opposing this ground of the application. It is contended
by the State that at no point was any postponement in this matter attributed to the
State. Further, the State vehemently denies that prosecutors have been changed,
and such change caused a further delay, that led to the pre-trial conference to be
postponed to 23 May 2025. I bear in mind the importance attached by to the liberty
of an accused person. In terms of section 12(1)(a) of the Constitution of the
Republic of South Africa, Act 108 of 1996 ("the Constitution"), a person cannot be
deprived of his or her freedom arbitrarily or without just cause. Furthermore, the
Constitution requires that an accused person should be released if it is in the
interests of justice to do so.
[22] The first point of departure is that the initial bail court and the appeal court were
of the view that the applicant's detention was necessary pending the finalisation of
his trial. Obviously, the initial bail court struck a balance between the interests of
the state vis-a-vis the liberty interests of the accused. As a result, its decision was
confirmed by the appeal court. Thus, it cannot be said that there was arbitrary
deprivation of the applicant's liberty. It does not follow either that the continued
detention is automatically justified.
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[23] At this point, I hasten to state that the immediate consequence of bail refusal is
that an accused person is unable to live his normal life. It is very well-established
that the detention of an accused person always comes with unfortunate and
horrible consequences. Hence, there should be adequate justification for the
limitation of the precious right of liberty. An accused person should be released if
it appears that it is absolutely necessary and it is in the interest of justice of justice
that the accused should be released.
[24] In Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC), the
Constitutional Court in para 17 stated the following:
"The phrase "interests of justice" denotes an equitable evaluation of all the
circumstances of a particular case. In that evaluation an important test is
whether the individual's position is substantially better or worse under the
final Constitution than under the interim Constitution."
[25] In this case, it is difficult for the applicant to say he should be released from
custody in order to go and sort out his banking business. The applicant is facing
serious charges of violence. Surely, it would not be in the interest of justice to
remove him to go and tend to his banking affairs whilst he is facing serious violent
charges. Moreover, the fact that his ongoing detention affects his banking affairs
in the context of this case does not mean that the applicant has set out a new fact.
It is an inherent consequence of his detention, that even existed during the initial
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bail application. In Sanderson (supra), these types of prejudice were called 'the
non-trial related prejudice suffered by an accused'. According to Krigler J [in
Sanderson], the central questions presented by this particular prejudice is whether
a particular lapse of time is reasonable.
[26] In the Sanderson matter, the Constitutional Court further stated the following:
"The profound difficulty with which we are confronted in this case is that an accused
person -despite being presumptively innocent -is subject to various forms of
prejudice and penalty merely by virtue of being an accused. These forms of
prejudice are unavoidable and unintended by-products of the system. In Mills,
Lamer J explained that
"[a]s a practical matter .. the impact of a public process on the accused may well
be to jeopardize or impair the benefits of the presumption of innocence. While the
presumption will continue to operate in the context of the process itself, it has little
force in the broader social context. Indeed many pay no more than lip service to
the presumption of innocence. Doubt will have been sown as to the accused's
integrity and conduct in the eyes of family, friends and colleagues. The
repercussions and disruption will vary in intensity from case to case, but they
inevitably arise and are part of the harsh reality of the criminal justice process."
In addition to the social prejudice referred to by Lamer J, the accused is also
subject to invasions of liberty that range from incarcerat ion or onerous bail
conditions to repeated attendance at a remote court for formal remands. This kind
11
of prejudice resembles even more closely the kind of "punishment" that ought only
(and ideally) to be imposed on convicted persons".
[27] The important principle at play in this matter is to determine whether the continued
detention of the applicant is justified. I am mindful that a key consideration for this
Court in this application is that I must have regard to the impact and the
reasonableness of the delay. However, I will later in this judgment discuss the
aspect of the delay.
Strength of the State's case
[28] It is self-evident from the applicant's argument that amongst others, he attacks
the strength of the State's case on certain aspects. It is true that an accused person
should not be kept in custody awaiting trial unless there is a good chance of the
State securing conviction. After all, when the State seeks or manages to have an
accused person detained without bail pending the finalisation of the trial; the State
must justify such detention. Hence, it follows that there is an evidential sufficiency
test that is a hurdle that the State must surmount to be able to secure the detention
of an accused person awaiting trial. As a logical corollary, the strength of the State's
case is one of the factors of the justifications.
[29] Accordingly, the strength or weakness of the State's case is significant during
bail proceedings. As a result, during bail application, the State must not fail to meet
the standard of raising a prima facie case against the accused.
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[30] Prima facie case is the test that should be satisfied. The prima facie case speaks
directly to the strength of the State's case. It is clear; therefore, the strength of the
State should not be based on speculation. In P.M. and Others v S (A59/2024)
[2024] ZAGPJHC 875 (9 September 2024) the following was stated regarding the
strength of the State's case:
"When the State has either failed to make a case or has relied on one which
is so lacking in detail or persuasion that a court hearing a bail application
cannot express even a prima facie view as to its strength or weakness the
accused must receive the benefit of the doubt".
[31] There is no doubt that the existence of a recanting statement presents
considerable odds in the prosecution's case. Undoubtedly, the strength of the
State's case is now called into question.
[32] It is appropriate at this stage to say something about the presumption of
innocence. It should be observed that, according to the Constitution's principles ,
the bail court is deeply concerned with the right of a person who is presumed to be
innocent, whose right to liberty is at stake. However, despite the right to be
presumed innocent, there are instances where an accused person has to be
detained pending the trial.
[33] As far as the section 204 witness is concerned , it is not in dispute that the 204
witness's new statement is substantially at variance from the 204 statement on
material facts.
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[34] According to the applicant, this recent discovery discloses and presupposes that
the State's evidence is insufficient to support the convictions because the section
204 account cannot be credible.
[35] Ordinarily, the prosecution does not proceed with the case if there is no
reasonable prospect of a conviction being secured on the available evidence. The
question that the applicant seeks this court to decide is whether the discovery of
the new evidence affects the State's prospects of securing a conviction.
[36] I wish to emphasise at the outset that it is important to note that it is now settled
that the bail court is not tasked with the task of making provisional findings of guilt
when considering bail, but to assess the prima facie strength of the State's case.
I stress again, though the State is not required to prove its case during bail
proceedings, the strength of the State case is a relevant factor in determining
whether the applicant can be admitted on bail. In S v van Wyk 2005 (1} SACR 41
{SCA), it was stated that in order to successfully challenge the merits of the State's
case in bail proceedings, the applicant must prove on a balance of probabilities
that he will be acquitted (S v Botha 2002 (1) 222 SCA at 23H; S v Mathebula 2010
(1) SACR 55 ( SCA)).
Credibility of a witness
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[37] As noted earlier, the bail court's obligation is concerned primarily with the
assessment of whether the State has the necessary minimum evidence to
establish the crime/s preferred against the accused person. Of course, this begs
the question as to whether there is likelihood that the recanting statement might
be credible. In the circumstances, the existence of the recanting statement by
necessity implicates the credibility of the state witness. Thus, the recanting
statement has a potential of seriously undermining the credibility of the section 204
witness.
(38) As far as the recanting statement is concerned, the State is skeptical about it.
According to the State, it has other evidence that calls the truthfulness and the
reliability of the recanting statement into question. Furthermore, the State contends
that there is additional evidence besides the recanted affidavit.
[39] Notwithstanding the fact that the strength and weakness of the evidence of the
section 204 witness depends on the view to be taken of the witness's reliability; it
is not for the bail court to weigh the evidence, to do so would be to usurp the task
of the trial court. In addition, the trial court would need to consider the recanting
statement in light of all the other evidence presented before it and the totality of
the circumstances. I unhesitatingly accept that this is a province of the trial court.
[40] Issues arising from the credibility of a witness are always in the trial court's
domain. It is also trite that it is for triers of the facts who are tasked with the difficult
task of judging the credibility of a witness and determining the weight to be
15
attached to it. This is because the trial court also has the opportunity and
advantage to observe them as they testify. It is clear therefore that the credibility
of the 204 witness would be one of the primary considerations during the trial.
[41] Moreover, this Court does not have the latitude that the trial court would have. At
this stage, this Court cannot say that the section 204 witness account is unworthy
of belief or inherently not credible. It is not for this Court to determine that the
recanting statement undermines the credibility of the 204 witnesses. This Court
cannot make factual findings. As I have already mentioned , the task of this Court
is limited to ascertaining the sufficiency of the State's case.
[42] It follows from all these considerations that there is an underlining sharp
distinction between, on the one hand, the existence of a prima facie case and, on
the other hand, the credibility and the reliability of the prima facie case. At the cost
of repetition, the court hearing a bail application does not make factual
determinations or evaluate the credibility.
[43] It is well to bear in mind that the question that arises here is whether the applicant
is supposed to be released on the basis of recanting account of a key State
witness. Obviously, the fact that the State, amongst others, relied on a section 204
witness played a role in deciding whether the applicant proved on balance of
probabilities that he would be acquitted at the trial. It is therefore particularly
important to remember that it is only when the matter actually comes on for trial
that it will be possible to decide which statement of the section 204 witness to
believe. It is well known that the evidence can come out very differently in court
16
from how it comes across in the police docket. Evidence can be undermined or
strengthened by trial tools such as cross-examination.
[44] As far as the section 204 witness is concerned, it is not in dispute that he has
recanted his original statement. As mentioned previously, the State holds the view
that the reason behind the recantation is an attempt to obstruct the course of
justice. Of course, as I have mentioned earlier, it is the duty of the trial court if
called upon to do so, to determine whether the account of recantation is true or
false. It is clear, therefore, that, at this juncture, the fact that the section 204
witness has recanted his [purported] account on an affidavit that he had deposed
to, suggests that one of the statements is false. However, recantation by a state
witness before the trial hearing does not necessarily mean that the accused is
going to be acquitted. Whatever else might be said about the recanting statement
depends upon the trial court's findings. Thus, at this juncture no actual proof may
be given to any of the two statements .
{45] It is only when the matter actually comes on for trial that it will be possible to
decide which version of the 204 witness to believe. To that end the trial court is the
best court equipped to determine whether the recanting affidavit or testimony is
reliable or truthful. It is the trial court's task to decide whether the recanting affidavit
is some sort of perjury or newly discovered evidence, and to determine where the
truth lies. In other words, it is the trial court that should determine as to which of
the contradicting affidavits of the section 204 witness is credible.
17
[46] The 204 witness must still be challenged with the circumstances of his first
statement. It is only during the trial proceedings that he would be asked whether
he made such statements and be afforded an opportunity to explain them. The fact
that the section 24 witness has made inconsistent statements does not necessarily
mean that the trial court cannot find that there is an acceptable explanation for the
inconsistencies or the otherwise unexplained recanting statement.
(47] It is as well to remind oneself at this stage that, after all, the credibility of every
witness that testifies in a criminal trial, is open to question. As such, no witness is
clothed with the indicia of credibility or reliability before the assessment of his or
her testimony. As mentioned previously, of special importance in this case is the
fact that it is the trial court that has duty to assess the weight to be accorded to the
testimony of the 204 witness. Though, it appears that the credibly of the section
204 is crucial to the State's case, the credibility of the recanting affidavit still needs
to be proved.
[48] As such the applicant cannot expect that this Court should simply take the
recanting affidavit at face value. It is not for this Court to make a finding that the
State's case is based upon a falsehood.
[49] There is thus a difference between newly discovered evidence and a recanting
affidavit. No doubt the trial court that would hear all of the evidence would be able
to conclude as to whether the recantation is meant as an endeavour to free the
applicant from his charges.
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[50] What is more, the applicant would like for this Court to believe that the recanting
statement is a correction of the false affidavit. The existence of a recanting
statement does not say, however, that an accused person is automatically entitle
to be released. It also does not render the original statement automatically
unworthy of belief. The contradictory statements do not affect the competency of
the section 204 as a witness. And when the trial court has weighed up all the
evidence and the credibility of the witness, may determine the sufficiency of the
evidence.
[51] Before, an accused person can be released on bail based on new facts, it should
be clear that the recanting statement would probably lead to an acquittal.
[52] At this juncture, I am not persuaded that the recanting statement lowers the
strength of the State's case to a level less than it was before. Thus, it does not
form a new fact.
Delay in the commencement of the trial
[53] Mr Booth had a yet further string to his bow, in case he fails in his first
submissions. The applicant contends further that the delays in the commencement
of his trial constitute new facts that warrant his release on bail. It is asserted that
the applicant's constitutional right to a timely trial is being breached . It is common
cause that on 22 June 2022, the applicant's matter was transferred from the
Regional Court to this Court for trial.
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[54] In Sanderson the Constitutional Court sounded a clear warning on approaching
the use of foreign precedent by stating the following:
"Nevertheless, the use of foreign precedent requires circumspection and
acknowledgment that transplants require careful management. Thus, for
example, one should not resort to the Barker test or the Morin approach
without recognising that our society and our criminal justice system differ
from those in North America."
[55] Most significantly for present purposes, it is so that unlike other jurisdictions, in
South Africa, there are no time limits on pending trial or time limits upon which an
accused person is supposed to be kept in custody. Instead, we have a procedure
as contemplated in section 49(G) of the Correctional Services Act, Act 111 of 1998,
that provides that the detention of remand detainees should not exceed a period
of two years without the matter being brought to the attention of the relevant court
by the Head of the Correctional Centre. The court would then determine as to
whether the interest of justice warrants a further detention or release of an accused
person. If the accused person is not released, then he should be brought again
before court on an annual basis for reconsideration.
[56] Despite this, prolonged detention of an accused person may call the
constitutionality of the detention into question.
[57] Krigler J, in Sanderson supra further states the following:
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"It would be equally unrealistic not to recognise that the administration of
our whole criminal justice system, including the law enforcement and
correctional agencies, are under severe stress at the moment."
[58] It is settled that a delay that occurs between arrest and trial implicates the
constitutional right to a speedy trial. Section 35(3)( d) of the Constitution guarantees
justice that is administered speedily and without delay. Thus, in a constitutional
democracy a prompt access to court is indispensable.
[59] Article 14 (3) ( c) of the International Covenant of Civil and Political Rights [Adopted
16 December 1966 Entered into force 23 March 1976) entrenches the right to be
tried without undue delay. The consequences of a lengthy delay before trial are
without doubt harsh, especially for an accused person who is in custody. It is an
unfortunate reality that delays always haunt the administration of justice. Hence,
we have these much•cited ideals in the criminal justice system, "justice delayed is
justice denied" and "justice is sweetest when it is freshest".
(60] In the Sanderson matter, the Constitutional court further stated the following at
paragraph 30:
"The test for establishing whether the time allowed to lapse was reasonable
should not be unduly stratified or preordained. In some jurisdictions
prejudice is presumed -sometimes irrebuttably -after the lapse of loosely
specified time periods. I do not believe it would be helpful for our courts to
21
impose such semi-formal time constraints on the prosecuting authority.
That would be a law-making function ... "
[61] Pre-trial detention goes hand in hand with bail refusal. However, the detention
should not be unreasonable. In Sanderson, the Constitutional Court stated the
following:
"Be that as it may, adjudication of claims under section 25(3)(a) requires an
assessment of whether there has been a trial within a reasonable time.
Reasonableness is not a novel standard in South African law. Here, as in
the common law context, one makes an objective and rational assessment
of relevant considerations."
[62] Surely, the absence of a trial date does not in itself warrant an accused person to
be released on bail. The delay in the hearing of this matter is not by any means
related to the investigation of the case.
[63] Mr Booth suggests that the lack of a trial date is a new fact that warrants the
applicant to be released on bail. This Court cannot deny that there has been a
lengthy delay in bringing this matter to trial. But the 'delay' cannot be determined
in the abstract. It must be determined in relation to a set of facts and the accused
person's circumstances.
[64] Importantly, for this case's present purposes, I observed that it does not follow,
axiomatically, however, that the applicant is entitled to be released on bail merely
because the resources available do not allow an allocation of trial date.
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[65] Of special importance in this case is the fact tha1 it can happen that there are also
reasonably unforeseen and unavoidable circumstances that may lead to inordinate
delays. For instance, the complexity of a matter or an unexpected development
that may lead to a delay. In Sanderson, it was stated that the question is not
whether the accused person wants to go to trial, but whether he has actually
suffered prejudice as a result of the lapse of time.
[66] In 2020, the world was facing a pandemic caused by a novel coronavirus ,
SARS-CoV-2, responsible for an infectious respiratory disease called COVID-19.
Lockdown was imposed as an emergency measure to prevent the spread of
COVID-19.
[67] It is not difficult to understand why COVID-19 has been described as one of
"exceptional and unforeseeable circumstances". The pandemic called for
exceptional steps to be taken to curb the spread of the virus. In light of the
measures that were put in place to curb the spread of the virus, the pandemic
became a burden on already overburdened trial courts. Thus, there are exceptional
circumstances that justify a period of delay including the COVID-19 pandemic.
Exceptional circumstances are unusual events beyond control of the court or
authorities. They are reasonably unpredictable circumstances or unavoidable
occurrences that impair a court's ability to swiftly commence and dispose of a trial.
23
[68) In Sanderson, the Constitutional Court stated that for a certain period of time,
systemic factors are probably more excusable than cases of individual dereliction
of duty.
[69] I recognise that this is not a new problem. In the case of Litman v Director of
Public Prosecution Western Cape 2024 (1) SACR 188 (WCC) (27 November
2023 ), the applicant applied to amend his bail conditions on new facts. The
applicant raised two grounds in support of the application: First, that there will be
an inordinate delay before the trial against him commences. The applicant further
averred that the trial of this matter was initially scheduled for hearing from 28
February 2022 to 24 March 2022. The date was not adhered to, and the matter
was further enrolled for hearing from 24 July 2023 to 30 September 2023.
Regarding the inordinate delay, the investigating officer of the case testified inter
alia, that the effect of COVID-19 had adversely affected the functioning of the High
Court and caused a huge backlog in this court, which has not yet been cleared and
ultimately led to the 6 remand of the matter for trial. Lekhuleni J, in his findings,
was not satisfied that it was in the interest of justice to grant the application for the
amendment of applicant's bail conditions.
[70] It is always desirable that a case should be brought to trial as quickly as
reasonably and fairly possible. In this matter, it cannot be contended that the
prosecution did not act with all due diligence and expedition to bring this case to
trial. The applicant is on a cusp of getting a trial date.
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[71) The intricacies of the criminal justice system and the competing pressures and
burdens it faces are always there. It is a fact that the future always brings new and
unexpected challenges .
[72) I take judicial notice of the pandemic and its ongoing effects on institutional
resources such as the courts' roll. I venture to say, that in almost all the courts
within the country, the pandemic created an increment of case load of its own. As
such, the backlog created by the pandemic has overtaken the limited court
resources. As a result, the increase in case load forced the courts to devote the
scarce court resources to it.
[73] This has imposed demands beyond capacity. The avalanche of cases precludes
the courts from adhering to a mandated timetable. This had unfortunate
consequences of its own in terms of scheduling trial dates. Obviously, this should
be exceptional, not routine, because the constitutional right of the accused person
is impacted.
[74] Undeniably, COVID -19 had an unimaginable, serious and far-reaching impact
and consequences on the administration and functioning of the criminal justice
system. It also had numerous impacts upon how courts operated. The unfortunate
part of the impact of COVI D-19 is that it is not limited to those periods of time when
the court had to adjourn scheduled cases or when trials were suspended.
[75] As a consequence of the introduction of measures to prevent the spread of the
pandemic , the High courts were not spared from this, as they were also severely
25
affected by the pandemic. As a result, a large backlog of cases was created.
Accordingly, in view of the foregoing, the lockdowns resulted in a situation that led
to matters not being heard and other pre-trial procedures being delayed. For
instance, attorneys could not consult with their clients.
[76) The courts were under extreme pressure due to mounting backlogs and ever
increasing caseloads. This placed an additional burden and pressure on the speed
of finalising trials. It also inadvertently led to excessive delays in processing cases.
[77) It is true that when something like this [COVI D -19] happens, together with an
already existing ever-growing demand on the criminal justice system, there would
be a huge ripple effect even on well-run institutions. As a consequence , the delay
has had adverse repercussions with regard to the accused persons [particularly
those who are detained in custody awaiting trial] and interest of society. Hence, I
will have grave difficulty in understanding how in the circumstances it can be said
that this type of unforeseen delay makes the applicant's continued detention
unjustified. Such an argument will ignore the fact that the pandemic unfortunately
set a new pace of criminal litigation. Accordingly, there was an inherent delay.
[78] In my mind there is justification as to why the trial has not commenced. Put
differently, the delays in this matter are excusable . This Court also attaches weight
to the fact that this Division responded to the unpredictable circumstances to
reduce further delays caused by the pandemic. Since the pandemic, to avoid
delays, in the interests of justice, trials are heard at special designated venues.
26
See Davids v S 2022 (2) SACR 544 (WCC) (28 July 2022). Various circuit courts
were opened to deal with the backlog.
[79] There is an effective case flow management and case processing system in
place. In this division there is data collected on the affected cases, the status of
these cases, and age of the cases. Thus, it cannot be said that the backlog is
attributable to the court's mismanagement.
[80] The objective of criminal proceedings is to determine the guilt or innocence of the
accused person. To that end public interest demands an unrelenting search for the
truth and to bring a case to finality. When regard is had to the issues, in relation to
the interests of justice, I am satisfied that it would not be in the interests of the
administration of justice to find that delay in bringing the matter to trial constitutes
a new fact.
[81] In view of the foregoing this Court is of the firm opinion that in this matter, it cannot
be said that there is no longer a 'just cause' behind the accused's detention.
Though the prolonged detention of the applicant is regrettable, it cannot be said
that the delay is unreasonable as such, it amounts to a new fact that warrants his
release.
[82] In the determination of reasonableness of the delay, the Constitutional Court, in
the Sanderson matter, further observed that there is some proportionality between
the kind of sentences available for a crime, and the prejudice suffered by the
accused person. Pre-trial incarceration of five months for a crime, the maximum
27
sentence for which is six months, clearly points in the direction of
unreasonableness. In the present case, as far as reasonableness is concerned,
the proportionality between the sentence the applicant is facing and the prejudice
suffered is of no greater moment, as the applicant is facing life imprisonment if he
is convicted . Further, the applicant in this case did not adduce evidence to show
that the average systemic delay for this Court had been exceeded. I am in total
agreement with the Sanderson matter, that in the absence of such evidence, courts
may find it difficult to determine how much systemic delay to tolerate.
Conclusion
[83] In light of the above, it is evident that the applicant failed in the three issues that
he raised. In the circumstances, the applicant failed to satisfy this Court that there
are new facts that justify his release from custody pending the finalization of his
trial.
[84] In the result, the following order is granted:
82.1 The applicant's application to be released on bail is hereby dismissed.
Judge C.N. Nziweni
Judge of the High Court
APPEARENCES :
For the applicant
For the respondent •
Instructed by Mr William Booth
Adv D Rudolf
Office of the Director of Public
Prosecutions: Western Cape 28