S v Chiediebeze

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 29 June 2020
• Docket Number: BA 18/20
• Citation: 2020 JDR 1289 (MN)

Brauckmann AJ:

INTRODUCTION:

[1]

The appellant ("Mr Ike") was arrested on 7 January 2020 and charged with the offence of contravention of section 5(b) [1] , of The Drug and Drug Trafficking Act ("DTA") [2] (dealing in drugs). The

2020 JDR 1289 p3

Brauckmann AJ

charge of dealing in drugs follows an incident on 6 January 2020 where he was found in possession of drugs valued at more or less R I0 000.00 and subsequently arrested. The alleged drugs (cocaine) was found in the car he alone was travelling in at the time.

[2]

The accused has previously been convicted of an offence referred to in Schedule 1 (contravention of section 4(b) of the DTA - possession of drugs), thus qualifying this matter to fall within the ambit of Schedule 5 of the CPA [3] , and it also became common cause that the offence that Mr Ike is charged with, falls within the ambit of Section 60(11) (b) of (so-called Schedule 5 offence).

A BRIEF SUMMARY OF THE LEGAL POSITION:

[3]

Section 60(11) (b) of the Criminal Procedure Act stipulates that:

"Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in Schedule 5, the court shall order that the accused be detained in custody until he is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interest of justice permit his release."

2020 JDR 1289 p4

Brauckmann AJ

[4]

Mr Ike was given an opportunity to adduce evidence which satisfies the court that the interest of justice permit his release. He submitted evidence by way of affidavit. The State, in opposing the application for bail, submitted evidence by way of affidavits, and on the evidence thus adduced, the Court a quo was of the opinion that it was not in the interest of justice for him to be released on bail.

[5]

In the Constitutional Court case S v Dlamini, et al [4] , the following observation was made in para [6] of the judgment:

"[Section] 35(1)(f) postulates a judicial evaluation of different factors that make up the criterion of interests of justice, and ....... the basic objective traditionally ascribed to the institution of bail, namely to maximise personal liberty, fits snugly into the normative system of the Bill of Rights."

[6]

An accused is, in the absence of a conviction by a Court of Law, constitutionally presumed to be innocent [5] . 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

2020 JDR 1289 p5

Brauckmann AJ

therefore ordinarily grant bail to an accused unless this is likely to prejudice the ends of justice" [6] .

[7]

In S v Branco [7] Cachalia A.J (as he then was) remarked as follows:

"It must be borne in mind that any court seized with the problem of whether or not to release a detainee on bail must approach the matter 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'.)"

[8]

The fundamental objective of the institution of bail in a democratic 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 [8] ."

[9]

Johan van der Berg [9] , inter alia, remarks as follows:

2020 JDR 1289 p6

Brauckmann AJ

"In exercising its discretion, the court must seek to strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of justice, the court will lean in favour of liberty and grant bail where possible provided the interests of justice will not be prejudiced by this. Expressed differently, it may be said that bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release. Similarly, the accused's liberty should be encroached upon as little as the proper administration of justice will permit." [Own emphasis]

[10]

The weight of judicial opinion in South Africa fortunately appears to favour the notion that the accused is innocent until he is proven guilty, and that such presumed innocence also operates in bail hearings. This would be the case even where a strong prima facie case against the accused exists. In this matter no such case has been made out on the papers. The presumption of innocence operates in favour of the applicant even where it is said that there is a strong prima facie case against him.

[11]

The reasons for refusal of bail can usually be found in one of two considerations, or both: (1) will the accused abscond; and (2) will the granting of bail lead to interference with the investigation

2020 JDR 1289 p7

Brauckmann AJ

and/or prosecution? These considerations entail a projection of future conduct taking into account past conduct [10] .

[12]

Section 60 (4) of the CPA stipulates that:

The interests of justice do not permit the release from detention of an accused where 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;

(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

(d)

where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise

2020 JDR 1289 p8

Brauckmann AJ

the objectives or the proper functioning of the criminal justice system, including the bail system;

(e)

where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security;

[13]

A court cannot find that the refusal of bail is in the interests of justice merely because there is a risk or possibility that one or more of the consequences mentioned in subsection (4) will result. The court cannot grope in the dark and speculate; a finding on the probabilities must be made. Unless it can be found that one or more of the consequences will probably occur, detention of the accused is not in the interests of justice and the accused should be released [11] .

[14]

The purpose of the bail application is mainly to assess the "likelihood" of risk in light of the purpose of bail, which in its essence involves the securing of attendance of an accused person at trial and the prevention of that accused from interfering with the

2020 JDR 1289 p9

Brauckmann AJ

investigation of the case [12] . The Section 60(4) listed factors thus provides the framework under which this risk is to be assessed. The deprivation of liberty and freedom through arrest is one that should always be in line with the Constitution hence section 35 (1) (f) of the Constitution ensures that this deprivation serves the limited purpose of ensuring that the accused is duly and fairly tried, and hence the interest of justice requirement ought to be utilised as the foundation of any application to be released on bail [13] .

[15]

...