S v Faye

• Jurisdiction: South Africa
• Judge: Petse ADJP
• Judgment Date: 24 December 2008
• Citation: 2009 (2) SACR 210 (Tk)
• Docket Number: A122/2008
• Hearing Date: 19 December 2008
• Counsel: JJ Jordaan for the appellant. M van Drunick for the State.
• Court: Transkei High Court

Petse ADJP:

[1] The appellant in this appeal appeals against the refusal by the court a quo to admit him to bail.

[2] The appellant was arrested in East London on 18 August 2008 on a charge of robbery, for what in ordinary parlance has come to be known F as a 'cash-in-transit heist'.

[3] The allegation against the appellant (and seven others who do not feature in this appeal), is that on or about 9 June 2008 and at or near Xhibeni Administrative Area in the district of Tabankulu, he (and his co-accused) unlawfully and intentionally assaulted employees of Cash G Paymaster Services, and did then and with force take a sum of R1 million and four firearms.

[4] The appellant, apparently some two months after his arrest, applied in the court a quo to be admitted to bail. After the adduction of evidence the magistrate who heard his bail application turned it down. H

[5] It is common cause between Mr Jordaan, who argued the appeal on behalf of the appellant, and Mr Van Drunick, who appeared for the State, that the appellant is charged with a Schedule 6 offence (ie robbery with aggravating circumstances), and that being so it is again common cause that the appellant bore the onus in the court a quo to satisfy that court I that exceptional circumstances as contemplated in s 60(11)(a) of the Criminal Procedure Act 51 of 1977 (the Act) were present.

[6] In refusing bail to the appellant the magistrate in the court a quo, as can be gleaned from his ex tempore judgment which forms part of the appeal record before me, took into account the following factors, viz: J

Petse ADJP

(i)

A the so-called strength of the State's case against the appellant;

(ii)

the fact that the appellant might interfere with some of the witnesses for the prosecution, whom the magistrate found were well known to the appellant;

(iii)

what the magistrate said was 'a serious likelihood' of the appellant B not standing his trial; and

(iv)

the grave misgivings that the magistrate had about the appellant's alibi defence, viz that he was in Vosloorus on the day of the commission of the alleged offence.

[7] Before I determine the fate of his appeal I consider it necessary to say C a word or two about the proper approach that this court must adopt in deciding this appeal.

[8] The starting point should be an examination of s 65(4) of the Act, which reads thus:

'(4) The court or judge hearing the appeal shall not set aside the D decision against which the appeal is brought, unless such court or judge is satisfied that the decision was wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.'

(Emphasis added.)

E [9] These provisions leave no room for any doubt that the appeal court can justifiably interfere with the decision of the court of first instance, only if it is satisfied that the decision of the judicial officer who was seized with the bail application and refused it was wrong. See, for example, in this regard S v De Abreu 1980 (4) SA 94 (W) at 96H - 97A. Where the F court a quo misdirected itself materially on the facts and/or legal principles bearing on the matter, the court of appeal may itself consider the issue of bail afresh. See in this regard S v Mpulampula 2007 (2) SACR 133 (E) at 136e.

[10] It is as well to bear in mind that the grant or refusal of bail entails G to a large degree the exercise of a judicial discretion on a...