S v Mququ

• Jurisdiction: South Africa
• Judge: Rugunanan AJ
• Judgment Date: 14 May 2019
• Citation: 2019 (2) SACR 207 (ECG)
• Docket Number: CA&R 78/2019
• Hearing Date: 09 May 2019
• Counsel: P Daubermann for the appellant. HM Ackermann for the state.
• Court: Eastern Cape Division

Rugunanan AJ: C

[1] On 24 November 2014 the appellant, who was charged with six other accused on three counts of robbery with aggravating circumstances, appeared in the magistrates' court in East London where he launched an application for his release on bail. In a judgment delivered on 8 December 2014 the learned presiding magistrate dismissed the application and D refused bail. Aggrieved by the refusal to admit him to bail the appellant approached this court on appeal. The matter served before Van Papendorp AJ who, persuaded by the strength of the case against the appellant, dismissed the appeal, having found that his personal circumstances did not manifest as exceptional circumstances that merited his release in the interests of justice. [1] E

[2] On 18 December 2018 the appellant again unsuccessfully approached the magistrates' court in East London for bail on new facts. In broad summary these facts are relevant to: the delay in finalising the prosecution against him; the effect of his continued detention on his F personal circumstances, including those of his family; that he has no other pending cases against him and no previous convictions. Unconvinced that the new facts enabled the appellant to discharge the requisite onus in s 60(11)(a) of the Criminal Procedure Act (the Act), [2] the learned magistrate dismissed the application.

[3] Aggrieved once again by the magistrate's latest decision the appellant G approaches this court on appeal against that decision. It is considered unnecessary to canvass each of the grounds of appeal. In general terms they are that the magistrate erred in several respects, namely in failing to find that none of the factors (or likelihoods) mentioned in s 60(4) of the Act are present; in failing to accord due weight to the evidence in support H of the application for bail, in particular that the appellant is in custody awaiting trial for more than four years; in attaching undue weight to the evidence adduced by the state in opposing the application for bail; and in not finding that the totality of the evidence constituted exceptional circumstances that warranted his release on bail in the interests of justice. I

Rugunanan AJ

[4] A The appeal to this court is in terms of s 65(4) of the Act. The pro- visions of the section preclude me from setting aside the magistrate's decision unless I am satisfied that it is wrong, in which event the issue of bail may be considered afresh. [3] A finding that the magistrate's decision is wrong will ensue once it is shown that he misdirected himself in some B material way in relation to fact or law. [4] Absent a finding that the magistrate misdirected himself, the appeal must fail. Tritely, the powers of an appellate court are limited where a matter comes before it on appeal and not as a substantive application for bail. For that reason, when considering if the decision by a court of first instance is wrong, an C appellate court will accord deference and attach appropriate weight to the fact that the court of first instance is vested with a discretion. The appellate court will eschew any inclination to impose its own decision unless it is persuaded that the court of first instance is wrong. [5]

[5] D At the commencement of the initial bail application on 24 November 2014 some uncertainty existed as to whether the charges against the appellant were implicated by sch 5 or 6 to the Act. The application proceeded on the agreed premise that the offences fell within the ambit of sch 5 and that the onus was on the appellant to adduce evidence to the satisfaction of the court that the interests of justice permit his release. E On appeal to this court Van Papendorp AJ made a finding that the charges against the appellant fell within the ambit of sch 6. Accordingly, the magistrate dealt with the second bail application on this basis (and that is also the basis on which this appeal proceeds).

[6] F In the case of an accused person who is charged with an offence referred to in sch 6 to the Act, the provisions of s 60(11)(a) of the Act stipulate that the accused shall be detained in custody unless he or she adduces evidence which 'satisfies' the court that 'exceptional circumstances exist which in the interests of justice permit his or her release'. The word 'satisfies' attracts an onus that must be discharged by the G accused person on a balance of probabilities. [6] Our courts have refrained from attempting to formulate a comprehensive definition of what constitutes 'exceptional circumstances', as that would be attempting to define the indefinable. [7] A considerable degree of latitude is given to an applicant for bail to establish exceptional circumstances which, case by H case, may relate to the nature of the offence, the personal circumstances of the applicant, or anything else unusual or different to warrant their

Rugunanan AJ

release. [8] In addition, a measure of flexibility in the judicial approach to A the determination of 'exceptional circumstances' is permitted. [9] Where the 'interests of justice' are concerned, this is tritely regarded as a decidedly relevant consideration. In the exercise of its discretion a court will accord recognition to the constitutional right to freedom, which includes the right not to be detained without trial and will lean in favour of the liberty of a suspect and grant bail where possible, provided the B interests of justice will not be prejudiced thereby. [10]

[7] The approach to be adopted by the court entertaining a bail application brought on the alleged existence of new facts is that the court 'should consider all the facts...