S v Mathebula

• Jurisdiction: South Africa
• Citation: 2010 (1) SACR 55 (SCA)

S v Mathebula
2010 (1) SACR 55 (SCA)

2010 (1) SACR p55

Citation	2010 (1) SACR 55 (SCA)
Case No	431/2009
Court	Supreme Court of Appeal
Judge	Heher JA, Ponnan JA and Bosielo AJA
Heard	September 2, 2009
Judgment	September 11, 2009
Counsel	RC Krause (attorney) for the appellant.; LA More for the respondent.

Flynote : Sleutelwoorde

Bail — Refusal of — Appeal against — Factors to be taken into account — 'Exceptional B circumstances' as contemplated in s 60(11)(a) of Criminal Procedure Act 51 of 1977 — Onus resting on applicant in bail proceedings to prove on balance of probabilities that he will be acquitted of charge — Until applicant had set up prima facie case of prosecution failing there was no call on State to rebut his evidence to that effect — Appellant not contributing C anything to establishing existence of exceptional circumstances — Parroting terms of s 60(4) not establishing any grounds — Lack of facts to add weight to appellant's ipse dixit — Appeal dismissed.

Evidence — Adequacy of proof — Bail application — Appellant relied upon affidavit evidence which was not open to test by cross-examination and, D therefore, less persuasive — Appellant's denial of complicity and his alibi defence rested solely on his say-so, with no witness corroboration to strengthen it — Vulnerability of unsupported alibi evidence was notorious and dependent on court's assessment of truth of accused's testimony.

Headnote : Kopnota

The appellant was arrested on charges of murder and possession of arms and E ammunition. Since the main charge formed part of the category of offences in Schedule 6 to the Criminal Procedure Act 51 of 1977, the appellant undertook the task of adducing evidence to satisfy the court that exceptional circumstances existed which in the interest of justice permitted the court to release him (s 60(11)(a) of the Act). His appeal to the North F Gauteng High Court, Pretoria, against the refusal by the magistrate to grant bail to him pending his trial, was dismissed. In an appeal to the Supreme Court of Appeal,

Held, that the appellant relied upon affidavit evidence which was not open to test by cross-examination and, therefore, less persuasive. Furthermore, the appellant's denial of complicity and his alibi defence rested solely on his G say-so, with no witness corroboration to strengthen it. The vulnerability of unsupported alibi evidence was notorious and dependent on the court's assessment of the truth of the accused's testimony. As to the appellant's suggestion that the police extracted an inadmissible confession from him, he provided no detail enhancing either his reliability or credibility. (Paragraph [11] at 59b–d.) H

Held, further, that, to successfully challenge the merits of the State case in bail proceedings, the applicant must prove on a balance of probability that he will be acquitted of the charge. Until an applicant had set up a prima facie case of the prosecution failing there was no call on the State to rebut his evidence to that effect. (Paragraph [12] at 59e and 59g–h.) I

Held, that, due to the paucity of facts in support of his case, the magistrate was left no wiser as to the strength or weakness of the State case; the appellant had not contributed anything to establishing the existence of exceptional circumstances. (Paragraph [13] at 59h–i.)

Held, further, that the remainder of the factors were neither unusual nor such as to singly or together warrant the release of the appellant in the interests of J

2010 (1) SACR p56

A justice. Parroting the terms of s 60(4) did not establish any of the grounds, without the addition of facts that added weight to the appellant's ipse dixit. (Paragraph [15] at 60b.) Appeal dismissed.

Annotations:

Cases cited

Reported cases

S v Botha en 'n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577): referred to B

S v Pienaar 1992 (1) SACR 178 (W): referred to

S v Viljoen 2002 (2) SACR 550 (SCA) ([2002] 4 All SA 10): referred to

Shabalala and Others v Attorney-General, Transvaal, and Another 1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593): referred to.

Legislation cited

Statutes

C The Criminal Procedure Act 51 of 1977, s 60(4) and s 60(11)(a): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-352 and 2-353.

Case Information

D Appeal from a decision of the North Gauteng High Court, Pretoria (Makhafola AJ). The facts appear from the judgment of Heher JA, in which Ponnan JA and Bosielo AJA concurred.

RC Krause (attorney) for the appellant.

LA More for the respondent.

Cur adv vult.

Postea (September 11).

Judgment

Heher JA:

F [1] This is an appeal against a judgment of the North Gauteng High Court, Pretoria in which the...