S v Mazibuko and Another

• Jurisdiction: South Africa

S v Mazibuko and Another
2010 (1) SACR 433 (KZP)

2010 (1) SACR p433

Citation	2010 (1) SACR 433 (KZP)
Case No	8774/09
Court	KwaZulu-Natal High Court, Pietermaritzburg
Judge	Rall AJ
Heard	October 22, 2009
Judgment	November 19, 2009
Counsel	L Barnard for the appellants.; N Dunywa for the respondent.

Flynote : Sleutelwoorde

Bail — Pending trial — When to be granted — Criminal Procedure Act 51 of 1977, E s 60(11) — Section 60(11) clearly distinguished between Schedule 6 accused and Schedule 5 accused, and to place them on same footing would render distinction meaningless — In case of Schedule 5 only factor distinguishing bail applications from those involving less serious offences was question of onus, s 60(11)(b) imposed an additional requirement, F namely, proving exceptional circumstances.

Bail — Refusal of — Appeal against — Factors to be taken into account — 'Exceptional circumstances' as contemplated in s 60(11)(a) of Criminal Procedure Act 51 of 1977 — Not required of accused to prove existence of factors in addition to those enumerated in ss (5) — (9) — Each one of final G paragraphs in ss (5) — (9) 'catch all' paragraph, reading 'any other factor which in the opinion of the Court should be taken into account' — Constitutional Court therefore deciding that accused entitled to rely on any factor expressly mentioned in ss (4) — (9) or any factor covered by last paragraphs of ss (5) — (9).

Bail — Refusal of — Appeal against — Factors to be taken into account — 'Exceptional H circumstances' as contemplated in s 60(11)(a) of Criminal Procedure Act 51 of 1977 — 'Exceptional' could firstly denote rarity of something (ie infrequency with which something occurred) — Secondly, could denote extent or degree to which quality or characteristic was present — Two meanings, however, interlinked — Court of view that emphasis should be placed on degree to which any circumstance was present . I

Bail — Refusal of — Appeal against — Factors to be taken into account — 'Exceptional circumstances' as contemplated in s 60(11)(a) of Criminal Procedure Act 51 of 1977 — For circumstance to qualify as sufficiently exceptional accused's release on bail had to be one which weighed heavily in favour of accused, thereby rendering case for release on bail exceptionally J

2010 (1) SACR p434

A strong or compelling — Applying test, accused had to show that case was exceptionally weak by showing on balance of probabilities that he would be acquitted — Magistrate was not wrong in concluding that no exceptional circumstances had been proven — Appeals dismissed.

Headnote : Kopnota

The appellants were in custody, awaiting trial on three counts of robbery and two B of murder. The appellants and a fellow accused applied for bail in the Pietermaritzburg regional magistrates' court. The State opposed bail, the regional magistrate refused bail to all three applicants, the two appellants appealed against that decision. It was common cause that the offences with which the appellants were charged were offences listed in Schedule 6 of the Criminal Procedure Act 51 of 1977 and therefore that s 60(11)(a) of the C Act applied. It was also common cause that, as a result, the appellants bore the onus of proving on a balance of probabilities that exceptional circumstances existed which required their release in the interests of justice. What was not common cause was what was meant by the expression 'exceptional circumstances' in s 60. The magistrate was of the view that by using that expression the legislature's intention was to make it extremely difficult or D almost impossible for an accused to make out a case for bail. The magistrate found that the ordinary grammatical meaning of the word 'exceptional' should be given to it and therefore that it meant 'unusual' or 'different'. Counsel for the appellants contended that it was not required of an applicant for bail to show that any particular factor counted exceptionally in the applicant's favour. All that was required was that the applicant had to show, taking into account the factors mentioned in ss (5)–(9) of s 60, that E all the factors in ss (4)(a)–(e) counted in the applicant's favour, or that none of the grounds for refusing bail set out in ss (4) existed. On appeal,

Held, that s 60(11) clearly distinguished between Schedule 6 accused and Schedule 5 accused and to place them on the same footing would render the distinction meaningless. In the case of Schedule 5 accused the only factor which distinguished those bail applications from those involving less serious F offences was the question of the onus, s 60(11)(b) imposed an additional requirement, namely, proving exceptional circumstances. Dictum in S v Dlamini and Others 1999 (4) SA 623 (CC) applied. The interpretation contended for by the counsel of the appellants was not correct. (Paragraph [12] at 438d–e.)

Held, further, as to what was meant by the expression 'exceptional circumstances', G that it was not required of an accused to prove the existence of factors in addition to those enumerated in ss (5)–(9). Each one of the final paragraphs in ss (5)–(9) was a 'catch all' paragraph, reading 'any other factor which in the opinion of the Court should be taken into account'. The Constitutional Court in Dlamini therefore decided that an accused was entitled to rely on any factor expressly mentioned in ss (4)–(9) or any factor H which was covered by the last paragraphs of ss (5)–(9). (Paragraph [13] at 438f–h.)

Held, further, that, in order to give a meaning to the phrase 'exceptional circumstances', it was essential to ascribe a meaning to 'exceptional', and a good starting point was the dictionary meaning of the word. (Paragraph I [14] at 438h–i.)

Held, further, that 'exceptional' could firstly denote the rarity of something (ie the infrequency with which something occurred). Secondly, it could denote the extent or degree to which a quality or characteristic was present. The two meanings were, however, interlinked. Emphasis should be placed on the degree to which any circumstance was present. Kriegler J in Dlamini's case stated '(t)here is no reason to believe that courts will find it J impossible to find that release on bail is justified where an "ordinary"

2010 (1) SACR p435

circumstance is present to an exceptional degree'. This appeared to be A logical because by definition an ordinary circumstance could not be exceptional unless it was present to an exceptional degree. (Paragraphs [16] and [18] at 439b–c and 439d–f.)

Held, further, that, for the circumstance to qualify as sufficiently exceptional, the accused's release on bail had to be one which weighed heavily in favour of B the accused, thereby rendering the case for release on bail exceptionally strong or compelling. The case to be made out had to be stronger than that required by ss (11)(b). Applying this approach, the process of deciding a bail application would be the same as in a case governed by ss (11)(b), save that the additional requirement of exceptional circumstances had to be satisfied. This meant that if an accused did not satisfy the ss (11)(b) test, it was not even necessary to consider whether the additional requirement C imposed by ss (11)(a) had been met. (The court proceeded to discuss case law where the approach was followed.) (Paragraphs [19]–[22] at 439f–440e.)

Held, further, applying the test, that it was insufficient for an accused who, for example, wished to rely on the weakness of the State's case to simply show that the State's case was weak. The accused had to show that the case was D exceptionally weak by showing on a balance of probabilities that the accused would be acquitted. (Paragraph [23] at 440f–g.)

Held, further, that the court was not satisfied that the appellants had made out a case that they were not flight risks, let alone a case that there was an exceptionally good chance that they would stand trial. The court was also not satisfied that the appellants would suffer exceptional prejudice were E they to remain in custody. (Paragraph [32] at 442e–f.)

Held, accordingly, that the magistrate was not wrong in concluding that no exceptional circumstances had been proved. (Paragraph [33] at 442f.) The appeals of both appellants dismissed.

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, Transkei v Nkalweni NO and Another 2009 (2) SACR 243 (Tk): referred to F

S v Botha en 'n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577): dictum in para [21] applied

S v C 1998 (2) SACR 721 (C): doubted G

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623...