S v Boeck

• Jurisdiction: South Africa

S v Boeck
2000 (2) SACR 185 (T)

2000 (2) SACR p185

Citation	2000 (2) SACR 185 (T)
Court	Transvaal Provincial Division
Judge	Jordaan AJ
Heard	May 9, 2000
Judgment	May 9, 2000
Counsel	D J Hancock for the appellant.; Schutte for the State.

Flynote : Sleutelwoorde

Bail — Application for — Evidence — Court relying on written statement by investigating officer which was not an affidavit as B intended by s 213(2)(a) of Criminal Procedure Act 51 of 1977 — Statement not admissible but accused not having adduced evidence to satisfy court that his release in the interests of justice as required by s 60(11)(b) of Act.

Headnote : Kopnota

The appellant, who was to be charged with 26 counts, mainly of fraud and theft and some counts of robbery C involving a total amount of R220 000, had been refused bail by a regional magistrate. In an appeal against the refusal it was common cause that the matter fell under Schedule 5 of the Criminal Procedure Act 51 of 1977 and that the appellant had to adduce evidence which satisfied the court that the interests of justice permitted his release under s 60(11)(b) of the Act. The accused had given evidence at his application in the court a quo and D the State had handed in a statement by the investigating officer in opposition to the application. On appeal, counsel for the appellant urged the Court to disregard the statement as it was not an affidavit, not having been sworn to before a commission of oaths.

Held, that although the general rule was that evidence had to be given viva voce in court in terms of s 160(1) of E the Criminal Procedure Act, it was clear that evidence other than evidence given viva voce could be accepted by a court of law, for instance in terms of s 213 of the Act. The present statement however was not admissible on the basis that it was a s 213 statement as it did not contain a declaration mentioned in s 213(2)(a) and neither did any of the exceptions apply, relating to those who for religious reasons did not want to take the oath or through F youthfulness failed to understand the implications of taking the oath. If the State elected to make use of the unsatisfactory procedure to adduce evidence in bail applications other than through viva voce evidence which could be tested by cross-examination, it had to do so or either in terms of s 213, in which case the statement had to conform with all requirements of the section, or by means of affidavit. It also had to realise that it did so at its peril because the value attached to a written statement was clearly less than that of evidence under oath duly G tested by cross-examination. Despite this however, the appellant had failed to satisfy the court that his release would be in the interests of justice and the appeal accordingly had to be dismissed.

Case Information

Appeal from a refusal of bail in a regional court. H

D J Hancock for the appellant.

Schutte for the State.

Judgment

Jordaan AJ:

This is a bail appeal. The appellant is to be charged with 26 counts, mainly of fraud and theft, and some of robbery, and in the alternative, of conspiracy. The amount involved is approximately R220 000. He I launched...