S v Van der Merwe

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mankge J
• Judgment Date: 29 July 2022
• Counsel: M Mavundla for the appellant. GT Nkosi for the state.
• Hearing Date: 29 July 2022
• Citation: 2023 (1) SACR 94 (ML)
• Docket Number: BA 10/2022

Mankge J:

Introduction

[1] This is an appeal against the decision of magistrate Malemone of Bethal Magistrates' Court refusing to release the appellant on bail on 8 March 2022. The order was made pursuant to a formal bail application wherein the evidence from both sides was adduced by way of affidavit.

The charge

[2] The bail proceedings reveal that the appellant was charged with one count of contravening the provisions of s 3 read with ss 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of Act 32 of 2007 as amended, further read with s 120 of the Children's Act 38 of 2005.

[3] The record of the proceedings reveals further that the appellant intends pleading not guilty to the charges against him in the trial. The appellant went no further than this in his application before the magistrates' court.

The facts

[4] The background facts of the appeal are briefly that an 8-year-old girl alleged that she was raped by a known male by penetrating her anus with

Mankge J

his penis. The evidence of the investigating officer reveals further that the appellant was pointed out to her by an aunt of the victim. According to the investigating officer, the appellant also cooperated with her when she arrested him at his house at Emzinoni. The victim has since relocated to Witbank to her biological father, and the investigating officer told the bail court that she is safe where she is.

[5] In the bail proceedings the investigating officer did not oppose bail and further asked the court to release the applicant if the court found him a suitable candidate for bail.

[6] At commencement of the bail proceedings it was settled that the offence that the appellant was charged with fell under sch 6 offences, and the bail application proceeded under this premise.

[7] The Criminal Procedure Act 51 of 1977 (the CPA) provides that an accused person is entitled to apply for bail. The Act further sets out the factors that need to be considered by the court in deciding whether bail is to be granted or not. In this bail application the provisions that were applicable were those of s 60(11)(a), which provides:

'(I)n Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release; . . . .'

[8] In the court a quo the appellant contended that exceptional circumstances were established. The appellant in this appeal contends also that he successfully established these circumstances and that there was therefore no reason for the magistrate to refuse him bail. The state in the court a quo did not argue much, except to just submit that the appellant may be released on bail with certain conditions.

[9] The state, before this court, argued for the first time in this matter that the appellant failed to adduce evidence which satisfied the court that exceptional circumstances exist, which in the interest of justice permitted his release on bail. The state contends further that the appellant has also failed to convince this court that the magistrates' court was wrong in not granting him bail, and that he only furnished court with ordinary circumstances, which, even if they are taken together, do not constitute exceptional circumstances.

[10] The provisions of the Act make it clear that the appellant bears the duty to satisfy the court that the interests of justice do not require his further detention. If it is found that the appellant established this fact, it follows therefore that this court ought to find that the court a...