S v Muller

• Jurisdiction: South Africa
• Judge: Chetty J
• Judgment Date: 13 June 2008
• Docket Number: CA & R 138/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 13 June 2008
• Citation: 2008 JDR 0736 (SE)

Chetty J:

[1]

The appellant was previously arrested on a charge of assault upon his wife with the intent to cause her grievous bodily harm. He was admitted to bail in an amount of R1000 - 00. On 3 June 2008 he was again arrested on a similar charge. His application to be admitted to bail was unsuccessful hence the present appeal. At the inception of the bail application before the magistrate in the court a quo the general consensus which prevailed between the appellant's counsel and the prosecutor was

2008 JDR 0736 p2

Chetty J

that the offence charged was one which fell within the purview of section 60 (11) (b) of the Act [1] in terms of which the accused was saddled with the onus of satisfying the court that the interests of justice permitted his release on bail. The appellant testified but the state led no evidence in opposition to the application. In its judgment the court a quo held that the appellant failed to discharge the onus resting upon him and refused to admit him to bail. It now appears that the parties, including the magistrate, laboured under the misapprehension that the offences charged (the previous, as well as the present) fell within the ambit of Schedule 5 of the Act when clearly it did not. The present charge and its predecessor was, as I have stated, assault with the intent to do grievous bodily harm, an offence not listed in Schedule 5. After listing various offences, the penultimate paragraph of Schedule 5 includes, by reference to Schedule I, an offence referred to therein and for which the accused had either been convicted of or had committed whilst on bail in respect of such offence [2] . Although the offence of assault is listed in Schedule I its ambit is narrowly circumscribed - viz. assault when a dangerous wound is inflicted.

[2]

There was no suggestion either in the charge sheet or during the prosecutor's cross-examination of the appellant that the complainant had

2008 JDR 0736 p3

Chetty J

had a dangerous wound inflicted upon her during the course of the assault.

[3]

Notwithstanding defence counsel's concession as aforesaid therefore, the magistrate had to satisfy himself that the appellant had been charged with a Schedule 5 offence prior to investing him with the onus of establishing that the interests of justice permitted his release from custody. The finding that the appellant failed to discharge such onus therefore clearly amounted to a misdirection.

[4]

Although section 60 (4) of the...