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appellant stands charged with murder and robbery
with aggravating circumstances arising from a
hijacking of a motor vehicle driven by the deceased,
Mr Khulusa, a ride-h ailing driver who was
subsequently discovered to have been fatally shot.
[2] It is common cause that the charges fall within the
ambit of S chedule 6 to the CPA . In terms of section
60 (11)(a) an accused charged with a schedule 6
offence shall be detained in custody unless he 10
adduces evidence which satisfies the Court that
exceptional circumstances exist which, in the interest
of justice, permit the release on bail.
[3] The scope of an appeal against the refusal of bail is
limited. Section 6 5(4) of the CPA provides that the
Court hearing the appeal shall not set aside the
decision of the Court a quo unless satisfied that the
decision was wrong. The appeal court therefore does
not rehear the bail application afresh, but determines 20
whether the magistrate exercised her discretion
improperly, or reached a conclusion not justified by
the evidence. See S v Barber 1979 (4) SA 218 (D) at
220 E – G.
[4] The concept of exceptional circumstances has been
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considered in a number of decisions. In S v Petersen
2008 (2) SACR 355 (C) at paragraph 55 the Court
explained that exceptional circumstances are
circumstances which are unusual, extraordinary or
remarkable, when measured against the ordinary run
of bail applications . The enquiry is a holistic one
which requires the Court to consider the totality of
the evidence.
[5] The appellant relied principally on his personal 10
circumstances. He stated that he is married, that he
has minor children who depend on him financially,
and that he is employed as a protection officer
earning a monthly income. He further asserts that he
has no previous conviction, and that he would comply
with any conditions of bail imposed by the Court.
[6] The appellant also advanced the version intended to
explain his presence in the hijacked vehicle.
According to him, he had requested transport and was 20
travelling in the vehicle when unknown perpetrators
stopped the vehicle and robbed both him and the
driver. He alleged that he too was assaulted during
the robbery, and that he remained in the vehicle after
the perpetrators fled.
[7] The essence of the appellant’s explanation is that he
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happened to be present at the scene by unfortunate
coincidence and that his arrest resulted from him
being at the wrong place at the wrong time.
[8] The State opposed bail through the affidavit of the
investigating officer Sergeant Baloyi. The officer
described how the hijacked vehicle was traced
through a tracking system shortly after the incident.
Police found the coordinates provided by the tracking
company and located the vehicle in White City, 10
Jabavu.
[9] When the police arrived they found the appellant
seated in the driver’s seat of the hijacked vehicle.
Upon searching him they discovered two cellular
telephones. The appellant was unable to unlock one
of the devices, while the police were present , the
phone rang and the caller identified himself as being
from the tracking company. The caller confirmed that
the device belonged to the hijacked vehicle. 20
[10] A further search of the vehicle revealed a firearm
concealed inside the vehicle. The serial number
corresponded with the firearm license issued in the
appellant’s name. The firearm contained live
cartridges. These discoveries directly link the
appellant to the vehicle and to property belonging to
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the deceased.
[11] The investigation subsequently established that the
deceased had been fatally shot and that his body had
been dumped some distance away. The investigating
officer indicated that the hijacking, the recovery of
the vehicle, and the discovery of the deceased’s
body, occurred within a relatively short timeframe.
[12] The investigating officer further stated that the 10
appellant provided different residential addresses,
some of which could not be verified. The officer
expressed the view that the appellant had not been
candid regarding his place of residence.
[13] The magistrate evaluated the evidence placed before
the Court and concluded that the appellant had failed
to demonstrate the existence of exceptional
circumstances, as contemplated in section 60 (11)(a).
The magistrate held that the appellant’s personal 20
circumstances were ordinary and did not meet the
threshold required in S chedule 6 offences .
[14] The magistrate also considered the prima facie
strength of the State’s case. T he fact that the
appellant had been found seated in the hijacked
vehicle, that he was in possession of the deceased’s
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cellular telephone, and that a firearm linked to him
was found in the vehicle constituted powerful
circumstantial evidence connecting him to the offence
under investigation.
[15] It is well -established that possession of recently
stolen property may give rise to a strong inference of
involvement in the underlying offence, particularly
where no satisfactory explanation is provided. At the
bail stage such circumstances are capable of 10
demonstrating that the State’s case is prima facie
strong.
[16] In evaluating the appellant’s explanation, the
magistrate concluded that it was improbable when
measured against the objective facts. An explanation
that amounts to no more than an assertion that the
accused was at the wrong place at the wrong time
does not, without more, constitute exceptional
circumstances. 20
[17] The difficulty confronting the appellant is that the
objective facts point in the opposite direction. He
was discovered seated in the driver’s seat of the
hijacked vehicle, he was found in possession of the
deceased’s cellular telephone, and a firearm linked to
him was found concealed in the vehicle. These
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circumstances undermine the plausibility of his
explanation.
[18] Bail proceedings do not involve a determination of
guilt . H owever, courts are entitled to consider the
prima facie strength of the State’s case when
assessing whether the interests of justice permit
release. See S v Mathebula 2010 (1) SACR 55
(SCA).
10
[19] The appellant did not satisfy the regional magistrate
that the State’s case is exceptionally weak or that an
acquittal is likely. In schedule 6 matters an accused
who relies on alleged weakness of the State’s case
must demonstrate such weakness on a balance of
probabilities.
[20] In my view, the appellant’s reliance on employment,
family responsibilities, and the absence of previous
convictions, does not constitute exceptional 20
circumstances. Such circumstances are not unusual,
and have been held not to satisfy the statutory
threshold.
[21] Having regard to the totality of the evidence, I am not
persuaded that the magistrate committed any
misdirection, or that her conclusion was wrong. On