Rex v Fourie

• Jurisdiction: South Africa
• Judge: Fischer JP
• Judgment Date: 24 April 1947
• Hearing Date: 24 April 1947
• Court: Orange Free State Provincial Division

Rex v Fourie
1947 (2) SA 574 (O)

1947 (2) SA p574

Citation	1947 (2) SA 574 (O)
Court	Orange Free State Provincial Division
Judge	Fischer JP
Heard	April 24, 1947
Judgment	April 24, 1947

Flynote : Sleutelwoorde

Criminal procedure — Bail — Discretion in Court — Exercise of — Factors to be considered — Views of Attorney-General — Court not bound thereby.

Headnote : Kopnota

A Court in exercising its discretion to admit an accused to bail, is entitled to go into all the circumstances to determine what type of man the accused is - whether he is the type who will refrain from exerting influence over witnesses in the event of his coming into contact with them - and it is entitled to have regard to the type of crime committed by the accused. From these facts the Court can form an estimate as to whether or not there is likely to be a general tampering of witnesses.

While the Court is not bound by what the Attorney-General thinks, nevertheless it will pay considerable respect to his views when he opposes an application for bail.

Case Information

Application for the grant of bail in a murder case.

J. N. C. de Villiers, for the applicant: The test to be applied is laid down in the following cases, Ex parte Taljaard (1942 OPD 66); Rex v McCarthy (1906, T.S. 657); Konig v The Attorney-General (1915 TPD 221 at p. 224); Rex v Gcora (1943, E.D.L. 74); Rex v Mbacele (47 P - H. H. 63).

W. M. van den Berg, Acting Attorney-General, for the Crown: There is a probability that if the applicant is released on bail the ends of justice will be defeated; cf. Ex parte Taljaard (supra). The danger of an accused person tampering with Crown witnesses is a ground justifying the refusal of bail; see Maserow v The Attorney-General and Another (1941, W.L.D. 43); an accused person who is likely to tamper with witnesses should not be released on bail merely on condition that if he interferes with the witnesses he will be deprived of the benefit of his bail; see Davids and Another v The Attorney-General (C.P.D., J.C. 1943, Case 48).de Villiers, in reply.

Judgment

Fischer, J.P.:

This is an application for bail by an awaiting trial prisoner who has been charged with the crime of murder. He is being detained in the local gaol and has approached the Court for the exercise of its discretion to admit him to bail. There is no difficulty as to the correct approach in a matter of this kind. It has been laid down frequently. I refer particularly

1947 (2) SA p575

Fischer JP

to the judgment of INNES, C.J., in the case of Rex v McCarthy (1906, T.S. 657), which has been followed...