S v Branco

• Jurisdiction: South Africa

S v Branco
2002 (1) SACR 531 (W)

2002 (1) SACR p531

Citation	2002 (1) SACR 531 (W)
Court	Witwatersrand Local Division
Judge	Cachalia AJ
Heard	March 26, 2001
Judgment	March 26, 2001
Counsel	Hodes for the appellant.; Wasserman for the State.

Flynote : Sleutelwoorde

Bail — Pending trial — When to be granted — Whether recused likely to flee — Accused charged with serious offence, namely importation of 4.1 tons of Mandrax — Accused a foreign national but H having resided in the country for five years — His wife and three children in the country — No evidence that he had any assets or business interests outside the country — Magistrate's refusal of bail set aside and bail of R200 000 granted on strict terms relating to reporting and surrender of passport. I

Headnote : Kopnota

The accused, a foreign national who had been resident in South Africa for five years, was facing charges of contravening s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 in that he was alleged to have imported 4.1 tons of Mandrax into the country. He applied for bail in a magistrate's court pending his trial but this was refused on the grounds that the charge against J

2002 (1) SACR p532

him was a serious one carrying a possible sentence of 25 years' imprisonment and A that as he was a foreign national there was a chance that he might flee and not stand his trial.

Held, that, although the charges were serious, the magistrate had misdirected himself by not having regard to the appellant's family and business ties to South Africa - his wife and three children being resident in the country. The Court accordingly ordered that the accused be released on bail of R200 000 on condition B that he reported three times daily to the police and that he surrender his passport.

Case Information

Appeal against a refusal of bail in a magistrate's court.

Hodes for the appellant.

Wasserman for the State. C

Judgment

Cachalia AJ:

This is an appeal against a decision by the regional magistrate at Johannesburg, on 21 December 2000, refusing to release the appellant on bail pending his trial. D

The appellant was charged with contravening s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. The charge relates to the alleged importation of 4141,1 kilograms of Mandrax tablets on 14 August 2000. The actual number of tables in question is 1 876 347. The charge relates to an offence as envisaged in Schedule 5 of the Criminal Procedure Act 51 of 1977 ('the Act'). E

Consequently the provisions of s 60(11)(b) of the Act are applicable to any bail application. Section 60(11) reads as follows:

'Notwithstanding any provision of this Act, where an accused is charged with an offence referred to -

(a)

. . . F

(b)

in Schedule 5, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law unless the accused, having been given the reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.'

The wording of s 60(11)(b) makes it clear that an applicant bears the onus to satisfy the court on a balance G of probabilities that the interests of justice do not require his or her detention. (See S v Vermaas 1996 (1) SACR 528 (T) at 529j - 530g; S v Shezi 1996 (1) SACR 715 (T) at 718a - d; S v Mauk 1999 (2) SACR 479 (W); S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) at 85e - f.) H

The fact that the appellant bears the onus does not mean that the State can adopt a passive role by not adducing any or sufficient rebutting evidence in the hope that the appellant might not discharge the onus. (See S v Jonas 1998 (2) SACR 677 (SE); S v Mauk (supra).) It must however be borne in mind that any court seised with the problem of whether or not to release a detainee on bail must approach the matter I from the perspective that freedom is a precious right protected by the Constitution. Such freedom should only be lawfully curtailed if 'the interests of justice so require'. (See s 35(1)(f) of the Constitution, which entitles any arrested or detained person 'to be released from detention if the interests of justice permit; subject to reasonable conditions'.) J

2002 (1) SACR p533

Cachalia AJ

The fundamental objective of the institution of bail in a democratic A society based on freedom is to maximise personal liberty. The proper approach to a decision in a bail application is that:

'The court will always grant bail where possible, and will lean in favour of and not against the liberty of the subject provided that it is clear that the interests of justice will not be prejudiced thereby.' B

Per Harcourt J in S v Smith and Another 1969 (4) SA 175 (N) at 177E - F.

In S v Acheson 1991 (2) SA 805 (Nm), Mahomed AJ (as he then was) emphasised that -

'An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in court. The court will therefore ordinarily grant bail to an accused unless this is C likely to prejudice the ends of justice.'

In terms of s 60(4) of the Act, the refusal to release an accused on bail from custody shall be in the interests of justice if one or more of the following grounds are established:

(a)

where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or D

(b)

where there is the likelihood that the accused, if he or she were released on bail will attempt to evade his or her trial; or

(c)

where there is the likelihood that the accused, if he or she were released on bail will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or E

(d)

where there is the likelihood that the accused, if he or she were...