Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Author: Michael Cowling
• Published date: 03 September 2019
• Pages: 220-238
• Date: 03 September 2019
• Citation: (2003) 16 SACJ 220

220

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SACJ •

(2003) 16

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Bail

Bail—exceptional circumstances

Section 60(11)(a) of the Criminal Procedure Act 1977 provides that bail

should be refused in any case where an accused has been charged with a

Schedule 6 offence (which consists of a number of serious offences including

premeditated murder) unless such accused can satisfy the court as to the

presence of exceptional circumstances justifying the granting of bail. One of

the problems with this section is the difficulty that courts have experienced in

attempting to define exceptional circumstances. (See for example

S v Jonas

1998 (2) SACR 677 (SEC) and

S v Mauk

1999 (2) SACR 479 (W) ).

In

S v Viljoen

2002 (2) SACR 550 (SCA) the accused was charged with the

premeditated murder of his wife. Shortly after his arrest he confessed to the

murder and made a pointing-out. This was subsequently confirmed by a plea

of guilty in the magistrates' court together with an explanation of plea. Later,

(2003) 16 SACJ 220

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a number of admissions consistent with all of the above were made when

applying for bail in the magistrates' court. The latter court found that the

accused had not persuaded it that any exceptional circumstances existed and

hence bail was accordingly denied. The accused appealed to the High Court

(which upheld the decision of he magistrate) where after the matter came by

way of a further appeal to the Supreme Court of Appeal.

The court (per Olivier JA) avoided attempting to define the term

exceptional circumstances. In this regard it followed a long line of cases

that seemed to concede that the term was incapable of a priori definition in

the abstract although it was possible to identify examples of such

circumstances on an ad hoc case-by-case basis. The court also emphasized

the fact that the onus rested on the accused which meant that it was not

necessary for the state to establish that the accused's circumstances pointed

to his being a flight risk or that he would undermine the administration of

justice or commit further offences if released on bail.

The precise issue before the court was that the accused's application for

bail rested on the fact that he subsequently refuted the confession, the

pointing-out and the admissions. Instead he submitted in an affidavit that

these had been induced as a result of his being assaulted by certain

policeman and hence that they were not true. What is interesting in this

regard is that the state did not produce any contrary evidence to show that

the assaults did not take place. Instead it relied on his earlier statements

(which not only implicated him in the commission of a Schedule 6 offence

but also expressly stated that he had not been assaulted).

Thereafter the court adduced a number of reasons why, on balance, the

accused's initial statements were true and hence the subsequent attempt to

disavow them must obviously be false. Some examples were to the effect that

the allegations of assault were vague and no individual policeman was

identified; he appeared to have first-hand knowledge as to how his wife had

been murdered; he had had a relationship with a prostitute (an old school

friend) at the time of his wife's death and also that nothing had been stolen

from the house (which ruled out robbery as a motive). The court also

expended considerable effort in discounting the accused's alibi to the effect

that he must have been at work at the time of his wife's death.

This case is a good example of attempting to determine bail applications

by way of strict application of the onus provisions contained in s 60(11) of

the Act. The reason for this is that this becomes the sole factor upon which

the outcome is based. Thus the court in

Viljoen's

case held that, because the

onus was on the accused, it was incumbent upon him to show that the initial

statements were false. This is tantamount to his having to prove his

innocence. Thus, instead of the hearing taking the form of a bail application

(which should have focused upon whether any of the usual factors and

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