Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Citation: (1999) 12 SACJ 100
• Pages: 100-116
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: Michael Cowling

100



SACJ •

(1999) 12 •

SAS

Criminal procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Bail —grounds for refusal — intimidation of witnesses

Section 60(4)(c) of the Criminal Procedure Act sets out as a ground for refusal

to release an accused on bail the likelihood that such accused will attempt to

influence or intimidate witnesses or to conceal or destroy evidence. In

S v

Tshabalala

1998 (2) SACR 259 (CPD) it was held that this provision

contemplates a likelihood that an accused, if released on bail, will attempt to

interfere with witnesses.

It was further held that a successful attempt is not envisaged since the State

is not required to run the risk that an accused will actually succeed in

intimidating or interfering with witnesses (at 271e—f). The term 'likelihood'

in this context means probability which in turn requires the State to establish

a probability that an applicant for bail, if released, would attempt to influence

or intimidate witnesses or attempt to conceal or destroy evidence. In the

instant case the Court took account of the fact that the applicant had

threatened and intimidated witnesses in the past.

Bail — nature of proceedings

The decision in

Garees v Fouche

1998 (2) SACR 451 (NmHC) illustrates an

interesting point concerning the nature of bail proceedings. The facts of the

case were to the effect that the applicant was arrested on certain charges and,

for certain reasons, did not wish to be detained overnight in prison. Since he

was arrested after hours this necessitated having to convene an 'after hours'

court in order to hear an urgent bail application.

(1999) 12 SACJ 100

© Juta and Company (Pty) Ltd

Recent Cases • Vonnisse



101

At the outset it is interesting to note that, had this situation occurred in

South Africa — and not Namibia — this would not have been an issue since

the decision in

Twayie v Minister van Justisie

1986 (2) SA 101 (0) constitutes

clear authority for after-hour bail applications thereby creating an obligation

on the part of the authorities to arrange for after-hours courts.

However, the situation was different in Namibia and the applicant's

attorney experienced some difficulty in trying to arrange a bail hearing

during the course of the evening after the applicant had been arrested. He

finally succeeded in obtaining a magistrate but was unable to secure the

services of a prosecutor since they had been instructed by the Prosecutor —

General that they do not have to entertain bail applications after normal court

hours.

This raised the question as to whether it was necessary for a public

prosecutor to be present at a bail application. When the matter finally came

before the Namibian High Court the question had been broadened into an

inquiry as to whether public prosecutors convened lower courts and whether

it was possible for a lower court to be convened for the hearing of a criminal

matter without the presence of a public prosecutor.

The Court in

Garees'

case (supra — per Hannah J) adopted a rather logical

and practical starting point to the effect that it would be difficult to proceed

with a criminal trial in the absence of a prosecutor since there would be no-

one to put the charge to an accused and to present the prosecution case. It is

presumably for this reason that s 5 of the Criminal Procedure Act empowers a

presiding officer to appoint a competent person to conduct a prosecution if

there is no public prosecutor.

However, the Court thereafter made reference to s 12(1) of the Magistrates'

Courts Act 32 of 1944 where magistrates are vested with the power to hold

a court. Since there is nothing in this provision that limits the right of a

magistrate to hold a court it was assumed that the presence of a prosecutor

was not a prerequisite. On the other hand the Court remarked that 'as a

matter of fairness and justice a magistrate, having decided to hold a court,

would obviously give the State the opportunity to have a public prosecutor

present' (at 454

b-c).

But in bail proceedings the Court seemed to conclude that, even from a

purely practical view-point, the presence of a prosecutor was not essential.

Reference was made to the fact that in England during the 1960s and 1970s

bail matters were routinely handled without the presence of a prosecutor.

Instead the investigating officer would go into the witness box and state

whether bail was objected to. If this was the case then reasons would be

furnished (at 454d-e).

What is interesting and warrants further comment in this case is that

the Court, without directly articulating it, drew a distinction between the

© Juta and Company (Pty) Ltd