S v Nichas and Another

• Jurisdiction: South Africa
• Judge: Diemont J, Theron J and Grosskopf J
• Judgment Date: 02 November 1976
• Citation: 1977 (1) SA 257 (C)
• Hearing Date: 03 September 1976
• Court: Cape Provincial Division

Diemont, J.:

The two appellants in this case, Thomatos and Nichas, were arrested together with a third person, Raymond Kets, on 24 August 1976 in respect of alleged contravention of A the SA Exchange Control Regulations and fraud. The two appellants appeared in the magistrate's court, Cape Town, on 26 August 1976 when the prosecution applied for a remand to 24 September pending further investigations by the police.

At the hearing an application was made for bail. The attorney representing the two appellants stated that the appellants could report to the police if necessary and the State should B say why they should not be let out on bail. The prosecutor resisted the application and in support of his argument he drew attention to the fact that a country-wide investigation was taking place and that the amount of foreign exchange involved was about R4 million. There were indications that the scheme was being operated by a syndicate and the State was C apprehensive that if bail were granted the appellants would interfere with witnesses.

No evidence was led and after he had heard argument the magistrate refused the application for bail.

Urgent appeals in terms of sec. 97 of Act 56 of 1955 were brought before me and my Brother THERON on Tuesday, 31 August 1976, on behalf of each of the appellants. These were brought D by way of two applications on notice to the Registrar, the Attorney-General and the clerk of the criminal court, Cape Town - each application being supported by an affidavit by the appellant concerned. Mr. Slabbert, who appeared for the State, took the point in limine that the matters were not ripe for hearing as the appeal formalities had not been complied with. E In particular no notice of appeal setting forth in proper form the grounds of appeal had been filed and the magistrate had received no notification of the intention to appeal until 3.30 p.m. on the previous day, that is Monday, 30 August. He had then stated that he would be prepared to furnish his reasons when an appeal was lodged. We were satisfied that the objection was well taken and both matters were accordingly postponed sine F die in order to give the appellants the opportunity to file their grounds of appeal and to enable the magistrate to furnish reasons for his decision.

Both the notice of appeal and the reasons for judgment were subsequently filed, whereupon the matters were brought to a hearing before the Court reconstituted as a Full Bench - my G Brother GROSSKOPF having been brought in as the third Judge. After argument had been heard, a unanimous decision was reached that both appeals should be dismissed. This decision was duly announced in Court, but it was stated that our reasons for it would be filed later. These will now be set out.

The grounds of appeal which were drawn up on behalf of the appellants after the initial hearing by me and my Brother H THERON on 31 August 1976 read as follows:

"(1)

The magistrate had no justification on the information before him for a conclusion that the administration of justice might suffer if he granted bail.

(2)

Nothing was placed before him by the State to justify the ex parte statement that the release of the appellants may result in interference with witnesses.

(3)

Not only was there nothing put forward by the State to support

Diemont J

a suggestion that the accused might abscond, it was not even suggested that they might do so.

(4)

The magistrate's decision was not an order which in the circumstances of the case was just."

In the supporting affidavit annexed to his original application A - as mentioned above - each of the appellants had set out information in regard to such personal circumstances as his age, nationality, occupation, his financial and business commitments and his family ties - all of which, it was contended, would militate against any attempt to abscond. It had been stated that the allegation that the witnesses might be B interfered with was unsubstantiated.

The State in turn had filed an opposing affidavit by a police officer, a Major Hulme, who had set out a number of facts which it was claimed should influence this Court and persuade it not to accede to the application for bail.

In the reasons furnished by the magistrate he stated that from C the grounds of appeal it appeared that an incorrect approach had been adopted by the appellants. He said:

"In an application for bail the general principle applied that the onus of proof is on the applicant, the accused. As to the facts, he must show that the grant of bail will not prejudice the interests of justice (R. v Mtatsala and Another, 1948 (2) SA 585 (E) D ). He may do this in the first instance by a sworn statement that he does not intend to interfere with State witnesses or the investigations of the police, but it should be an affidavit by the accused and not his attorney, and that he will stand trial if bail is granted. (See Swift, Law of Criminal Procedure, 2nd ed., p. 151.)

These principles are to be applied when an application for bail is opposed, such as in this case.

A mere statement by the attorney that the two accused are E directors in a business and that they are needed at their business and furthermore that they support their families and could report to the police if necessary, can certainly not be said to have been sufficient evidence to discharge the onus on the accused on a balance of probabilities."

There is some substance in what the magistrate says. However, F it does not call for any deep research into the law reports to establish that from time to time in the past there have been procedural problems and there has been division of opinion as to how best these problems should be resolved.

The difficulty arises in the first place by reason of the fact that there may appear to be some overlapping of the procedures authorised by secs. 97 and 98 of the Criminal Code.

G Sec. 97 provides as follows:

"(1)

Whenever an accused...