S V Mbele and Another 1996 (1) Sacr 212 (W)

Source:
South African Criminal Law Reports, The (1990 to date)/CHRONOLOGICAL LISTING OF CASES January 1990 to September 2023/1996/Volume 1: 139 265
(February)/S v MBELE AND ANOTHER 1996 (1) SACR 212 (W)
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S v MBELE AND ANOTHER 1996 (1) SACR 212 (W) A
1996 (1) SACR p212
Citation 1996 (1) SACR 212 (W)
Court Witwatersrand Local Division
Judge Leveson J
Heard November 20, 1995
Judgment November 20, 1995
Counsel A M van den Heever for the appellants
P P Stander for the State
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
B Bail Application for Onus Amendment of Criminal Procedure Act 51 of 1977 by Act 75 of 1995 Effect of Where s 60(11) of Act 51
of 1977 applicable, onus on accused Presiding officer not to act inquisitorially or investigatively in bail application.
Bail Application for Onus Effect of provisions of Constitution Act 200 of C 1993 Section 25(2)(d) not having anything to do with
incidence of onus in bail applications Section 60(11) of Criminal Procedure Act 51 of 1977 not in conflict with provisions of s 25(2)(d) of
Constitution.
Headnote : Kopnota
The appellants were arrested on a Wednesday night on charges of murder, robbery D and the unlawful possession of a firearm and ammunition.
On the Friday after their arrest they were brought before a magistrate and, being unrepresented, were advised by the magistrate as to their
rights regarding legal representation. Each stated that he would arrange for his own defence. The matter was then postponed for further
investigation for a period of approximately two weeks, the appellants E remaining in custody. A week after their appearance in court, the
Criminal Procedure Second Amendment Act 75 of 1995 came into operation, amending the Criminal Procedure Act 51 of 1977 in respect of
provisions relating to bail. On the adjourned date all four appellants were represented and an application was made to the magistrate for their
release on bail. At that stage there was no written charge against the appellants. The prosecutor informed the court, without any particularity,
that the appellants were to be charged with the aforementioned offences. The F application proceeded with the appellants being called to give
evidence. Each appellant was crossexamined by the prosecutor and the magistrate also took part in an investigative or inquistorial manner. The
prosecutor led the evidence of two witnesses. After considering the matter the magistrate decided that the appellants should not be released
on bail.
On appeal, G
Held, per Leveson J, as to the question of onus in bail applications, that it had been accepted that the courts had no inherent jurisdiction to
grant bail. Although nothing had been said anywhere in the legislation, Courts had constantly held that the onus was on an accused to establish
his right to liberty in the face of the issues raised in any particular application that he would stand his trial, that he would not interfere with
witnesses or tamper with evidence and generally that the granting of bail was in H the interests of justice. After the coming into operation of
the Constitution Act 200 of 1993 it had been held that the proceedings in a bail application were of an inquisitorial nature. This position could
not be supported. As the present proceedings were governed by the 1995 legislation however, the Court was not bound by such decision. I
Held, further, that the provisions of s 60(1)(a) of the Criminal Procedure Act, after amendment, did not add anything to s 25(2)(d) of the
Constitution Act.
Held, further, that the word 'satisfies' in s 60(11) of the Criminal Procedure Act had no other meaning than that the court was required to be
satisfied on a preponderance of probability.
Held, further, that there was a tendency to avoid the use of the expression 'burden J
1996 (1) SACR p213
A of proof' because a bail application was not a criminal proceeding and because the court was not required to weigh proved facts but to
speculate on future conduct on the basis of information laid before it. It was clear from the cases though that 'onus' was a wellknown concept
in bail proceedings and there was no purpose in being coy about the use of the word or that courts should shrink from using it simply because of
the nature of the proceeding.
B Held, further, that the current legislation squarely placed the question of onus where it has always belonged on the accused.
Held, per Stegmann J, that s 60(4) of the Criminal Procedure Act did not provide for a numerus clausus of grounds which may be sufficient to
justify the conclusion that it is in the interests of justice that an accused person should not be released on bail. C
Held, further, that the remedy of a detained person who has not been charged and against whom no allegation has been made that he has
committed an offence is not to seek his release on bail: it is to apply for an interdictum de homine libero exhibendo, a common law remedy now
entrenched by s 25(1)(e) of the Constitution.
D Held, further, that by applying for bail, the appellants tacitly acknowledged that they had been lawfully arrested and sufficiently informed of
the charges on which they were being held.
Held, further, that an inquisitorial or investigative proceeding was no more easily reconcilable with a judicial proceeding than the conduct of an
inquisitor or an investigator could be expected to be reconciled with the conduct required of a Judge. E
Held, further, that s 25(2)(d) was not intended to revolutionise the relevant principles of law governing bail applications: it had nothing to do
with the determination of the incidence of the onus of proof or the onus of persuasion.
F Held, further, that there was no conflict between s 25(2)(d) of the Constitution and s 60(11) of the Criminal Procedure Act.
Held, further, that when s 60(11) was applicable, there could be no question of a magistrate or Judge acting inquisitorially or investigatively: the
matter had to be G adjudicated on the question whether the applicant had discharged the onus placed on him by s 60(11).
On examining the information before it, the Court held that the appeal by the fourth appellant had to be upheld and those of the other
appellants dismissed. H
Case Information
Appeal from a refusal of bail in a magistrate's court.
A M van den Heever for the appellants.
© 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Sep 07 2023 10:53:47 GMT+0200 (South Africa Standard Time)
P P Stander for the State. I
appellants dismissed. H
Case Information
Appeal from a refusal of bail in a magistrate's court.
A M van den Heever for the appellants.
P P Stander for the State. I
Judgment
Leveson J: This is an appeal against an order by the magistrate, Johannesburg, refusing an application for bail in a matter where the accused
face charges of murder and armed robbery. In this hearing this Court is required to consider for the first time the effect of the new bail
legislation enacted in terms of the Criminal Procedure Second Amendment Act 75 of 1995. This legislation will have to be considered in the light
of the decisions of this Court which follow the enactment of the Constitution Act 200 of 1993. Section 25(2)(d) of the latter Act provided that:
'Every person arrested for the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person,
have the right to be released from detention, with or without bail, unless the interests of justice require otherwise.'
J
1996 (1) SACR p214
LEVESON J
A There has been some controversy with regard to the question as to where the onus lies in bail applications because of the language in which
this section is framed. It will be necessary to return to this question later. For the present it is to be noted that the new legislation raises the
question of proof and, with a view to determining the question of onus, it seems to be required of us to consider historically the approach which
has been adopted to the question of bail during much of this century. B
When the Criminal Procedure and Evidence Act 31 of 1917, was passed there was no provision for bail for persons charged with treason or
murder. Section 99 simply provided that when a person was committed for trial or sentence in respect of any offence except treason or murder
he was entitled to be admitted to bail when so C committed. The Act did not contain provisions as to onus. Prior to the 1917 Act, so it would
appear from the remarks of Innes CJ in McCarthy v R 1906 TS 657 at 659, bail could be granted where the charge was murder but 'great
caution is always exercised'.
D There was no material change with the introduction of the Criminal Procedure Act 56 of 1955. Section 87(1) thereof provided that no
accused against whom a preparatory examination had been instituted was entitled to be released on bail before committal for trial or sentence.
But, save in the case of treason or murder, a E magistrate could grant bail in his discretion before the preparatory examination was concluded.
According to s 88, on committal for trial or sentence, a person had a right to bail. But the magistrate could still refuse bail if he believed that
the person would not stand trial or comply with conditions imposed. Again it is to be noted that F murder and treason were not bailable
offences.
Next on the statute book was the Criminal Procedure Act 51 of 1977. In respect of offences not included in parts 2 or 3 of Schedule 2 of the
Act, persons could be G admitted to bail by noncommissioned police officers before appearance in the lower court. Section 60(1) provided:
'An accused person who is in custody in respect of any offence may at his first appearance in a lower court or at any stage after such
appearance apply to such court or, if the proceedings against the accused are pending in a superior Court, to that Court to be released on
bail in respect of such offence and any H such court may, subject to the provisions of s 61, release the accused on bail . . .'
Then followed the conditions on which bail might be allowed.
The latitude allowed in s 60(1) was restricted by s 61(1). If the AttorneyGeneral, I either by written notice or in person, informed the court
that he had information, not to be disclosed because of the public interest, that the release of the person accused was likely to affect the
administration of justice the court was bound to refuse bail. Under ss (4), where a prosecutor did not have such information, a postponement
could be requested so that he could obtain information from the AttorneyGeneral. If not forthcoming within 14 days the court was obliged to
determine the application for bail on its merits.
These were the provisions in force before the enactment of the current legislation. The cases, insofar as they considered this legislation, seem
generally to have accepted that the courts had no inherent jurisdiction to J
1996 (1) SACR p215
LEVESON J
A grant bail. (Cf Beehari v AttorneyGeneral, Natal 1956 (2) SA 598 (N); S v Kaplan 1967 (1) SA 634 (T); Chunilall v AttorneyGeneral, Natal
1979 (1) SA 236 (D)). I have found no case in which it is said that such inherent jurisdiction did exist. To this extent our rules did not seem to
differ materially from those in the United Kingdom or in many of the various states of the United States.
B Under the earlier legislation (ie prior to the 1977 Act) considerable weight was given to the attitude of the AttorneyGeneral. Where there
were substantial grounds for his opposition the court would be inclined against release. (Cf R v Smith 10 CTR 486; Kaspersen v R 1909 TS 639;
R v Louw 1918 CPD 358; Heller and Another v The AttorneyGeneral 1932 CPD 102.) So where it was thought that C the release of the accused
was likely to prejudice the course of investigations not then completed, bail was refused in R v Kaplan 1931 PH H51 (T) and likewise in R v Heller
(supra), where the AttorneyGeneral asserted his belief that the accused would abscond and tamper with witnesses.
This was the approach of the Courts without the enactment of legislative directions. D Parallel to this approach was the Court's approach with
respect to the matter of onus. Although nothing was said in the legislation anywhere along the line Courts throughout the country constantly
held that the onus was on the accused to establish his right to liberty in the face of the issues raised in any particular application that E he
would stand his trial, that he would not interfere with witnesses or tamper with evidence and generally that the granting of bail was in the
interests of justice. (Cf Perkins v R 1934 NPD 276; R v Mtatsala and Another 1948 (2) SA 585 (E); Leibman v AttorneyGeneral 1950 (1) SA 607
(W); R v Desai 1953 (2) PH F H192 (N) (and the string of cases there cited by Shaw J); R v Grigoriou 1953 (1) SA 479 (T); Du Toit v Attorney
General 1956 PH H89 (O); R v Limbada and Others 1955 (2) PH H196 (N); S v Nichas and Another 1977 (1) SA 257 (C); S v Hlongwa 1979 (4)
SA 112 (D); S v Mataboge and Others (1) 1991 (1) SACR 539 (B).) G
By 1995 one would have thought that the attitude of the Courts was so well established that it would not be open to question. Then came the
Constitution Act. Du Toit et al in their Commentary on the Criminal Procedure Act thereupon took the view that the constitutional provision had
moved the burden from the accused to the State. The same approach was adopted in Magano and Another v District Magistrate, Johannesburg
and Others (1) 1994 (2) SACR 304 (W). There counsel had argued that the onus had been placed upon the State because of the interpretation
provision contained in s 35(3) of the Act. In interpreting a H statutory provision the court is to have regard to 'the spirit, purport and objects of
this Chapter'. I consider that it has always been the law that when interpreting a section that must be done in the context and against the
background of the statute as a whole. I am inclined to the view that this section was enacted with reference to I other laws and not the
Constitution Act. Secondly the learned Judge said that the use of the word 'unless' added weight to the argument that the onus rested upon
the State. I am unable to perceive any mystical significance in the word. Save for s 35, the whole of Chapter 3 (in which s 25 resides) deals
with the rights of the individual and J
1996 (1) SACR p216
LEVESON J
A only s 35 contains adjectival provisions. There is nothing in s 25(2)(d) which in my opinion can be described as adjectival. The decision was
not followed in the two Witwatersrand Division cases shortly to be mentioned and, with respect, I consider it to be wrongly decided.
Shortly after this decision, Eloff JP in Prokureurgeneraal van die B Witwatersrandse Plaaslike Afdeling v Van Heerden en Andere 1994 (2) SACR
469 (W) upheld an appeal in which a magistrate had held that the onus was on the State. He came to the conclusion that bail proceedings are
not criminal proceedings and therefore that the incidence of onus did not achieve the same importance. He was not disposed to conclude that
onus in the conventional sense C was a useful tool in resolving a dispute. Instead the Court had to look at the whole conspectus of interests
A only s 35 contains adjectival provisions. There is nothing in s 25(2)(d) which in my opinion can be described as adjectival. The decision was
not followed in the two Witwatersrand Division cases shortly to be mentioned and, with respect, I consider it to be wrongly decided.
Shortly after this decision, Eloff JP in Prokureurgeneraal van die B Witwatersrandse Plaaslike Afdeling v Van Heerden en Andere 1994 (2) SACR
469 (W) upheld an appeal in which a magistrate had held that the onus was on the State. He came to the conclusion that bail proceedings are
not criminal proceedings and therefore that the incidence of onus did not achieve the same importance. He was not disposed to conclude that
onus in the conventional sense C was a useful tool in resolving a dispute. Instead the Court had to look at the whole conspectus of interests
and factors and base its decision thereon. The learned Judge had taken note of the criticism in the fifth ed of SuidAfrikaanse Strafproses.
There, at 149/50, the current author, Kriegler, had questioned whether onus had any place in bail proceedings. He had said:
D 'Die voortydige, interlokutêre informele, inherent dringende, toekomsgerigte en allesins unieke aard van die verrigtinge pas ten ene male nie
in 'n gerieflike nis nie.'
In earlier times, application for bail was made on petition. With the latest statutes, as has been seen, the accused became entitled to apply for
bail verbally. To this extent E it was an informal procedure. He could set out his assets and declare his intention to stand trial without taking
the oath. But if the application became opposed then both parties were entitled to lead their evidence through witnesses in the ordinary way
and all witnesses could be submitted to crossexamination. In such instances the enquiry ceased to be informal, the proceedings came to
resemble a trial and, in F my opinion, there was no reason why the rules and procedures pertinent to a trial hearing could not be employed. The
criticism, in my opinion, did not justify changing a practice of many years standing.
In Ellish en Andere v Prokureurgeneraal, Witwatersrandse Plaaslike Afdeling 1994 (4) SA 835 (W) the AttorneyGeneral himself argued that
there was no onus in bail proceedings. That factor together with the passage referred to from Kriegler G and a series of other factors led the
majority of the Court to hold that there was no onus in bail proceedings. However Kriegler, it may be mentioned in passing, had concluded on
the basis of the legislation as it then stood (ie before the passing of the 1995 Act) that 'for the present' it must be accepted that the onus
rests on the accused.
Van Schalkwyk J, who delivered the main judgment, sets out the material factors at 585E and following paragraphs. He referred to the fact that
bail proceedings were sui generis, that the proceedings were informal, that hearsay evidence was H acceptable and that the proceedings were
concerned with future conduct, namely whether the accused would stand his trial. Earlier he made substance of the fact that the proceedings
were inquisitorial. On this point, with respect, he seems to have I been led into error by the citation from an article in a journal, the Suid
Afrikaanse Tydskrif vir Strafregpleging by Cowling, the subject whereof was pending law reform on questions of bail then before the Law
Commission. In the passage J
1996 (1) SACR p217
LEVESON J
A quoted by the learned Judge in his judgment there is reference to the fact that 'the outlined procedure is essentially inquisitorial in
character'. What was under discussion in the article was proposals for legislation. The proposals have never seen the light of day. No power was
given in the Constitution Act to the judicial officer to B act as inquisitor and as far as my researches have taken me, nowhere at the time of
the Ellish judgment, or since, has it anywhere been laid down that the proceedings are inquisitorial. Indeed, even in the current Act (ie 75 of
1995) there is no provision whatever for a procedure of this nature. While, with respect, I consider that in holding that the proceedings are
inquisitorial the Court was wrong, I do not have to do any more than express my dissent because I have come to the view that the 1995
statute entitles this Court in this hearing to come to an independent conclusion. It is, incidentally, interesting to note that under the new
statute the court may acquire information material for its decision in an informal manner. But that is so only where D the matters are not in
dispute. See s 60(2)(b).
Reverting however to the other factors in the judgment, I have already made mention of the fact that when bail proceedings become fully
opposed they resemble more closely a trial hearing. There are averments to be proved or disproved, as the E case may be, and when there is
doubt there is no reason why the matter should not be resolved by resorting to the expedient of onus. It is true also that the court is required
to form an opinion as to a man's future conduct. In this connection there is no reason to expect a judicial officer to be more skilled in
clairvoyance than any other person. But even with future prospects the court must attempt to judge them in F relation to present facts. There
has to be determination of an issue as in any other trial. I am not persuaded that the factors considered by the learned Judge in the Ellish case
carry any weight, first, because there is nothing in s 25(2)(d) which invites their application, and second, because there was no reason to
overthrow at least 60 years of decisions in which it had been held that the onus lay on the G accused. The correctness of the view of the
majority of the Court is thus open to doubt. For the record it should be added that in the minority judgment of Southwood J it was said that the
onus lay on the State. With that view I obviously disagree.
A final word must be said in reference to the Constitution Act. One must look at the mischief against which s 25(2)(d) was aimed. Chapter 3 of
the statute deals with such matters as the rights of the individual and his relationship to the State. Broadly speaking, it is not concerned with
the procedures or the machinery to be set up for H the enforcement of those rights. Over the preceding 40 years there had accumulated on
the statute book provisions whereby arrested persons were denied access to lawyers or family and, in the case of security legislation, arbitrarily
held in detention for many weeks or months without even being brought to trial. There was I in fact a provision under the Security Act
whereby, on the issue of a certificate by the AttorneyGeneral, bail was to be refused. It would seem that the legislation was concerned with
wiping such provisions off the book and by entrenching the contents of s 25(2)(d) in the Constitution Act, ensuring that they never returned to
lock out the rights of the individual. J
1996 (1) SACR p218
LEVESON J
A This, in my opinion, was a provision of substantive law and did not purport to deal with onus.
I now turn to consider the new legislation. The starting point, in my opinion, is that B for reasons already given, the essence of s 25(2)(d) is
that it merely recites the right of the individual to his liberty and does not prescribe any procedural provisions for the determination of that
right. Thus there is nothing in the section which prohibits the enactment of legislation, the purpose of which is to cast the burden on one party
or the other. The section is neutral. It neither empowers nor prohibits. C
The new statute, that is the Criminal Procedure Second Amendment Act 75 of 1995 was passed, obviously, after the Constitution Act and its
provisions now form part of the Criminal Procedure Act 51 of 1977. Section 60(1)(a) of the latter Act, D in its present form, now reads:
'An accused who is in custody in respect of an offence shall, subject to the provisions of s 50(6) and (7), be entitled to be released on bail
at any stage preceding his or her conviction in respect of such offence, unless the court finds that it is in the interests of justice that he
or she be detained in custody.' E
In substance the section does not add anything to s 25(2)(d) of the Constitution Act. Further provisions of s 60 proceed to set out the powers
and duties of the court in an application and designate the grounds to be considered for the purpose of determining whether or not the granting
of bail is in the interests of justice or F otherwise. The fundamental aspect of s 25(2)(d) for that matter is the interests of justice. The section
furthermore lists the factors to be taken into account by the court in weighing the grounds so to be considered. With these matters this Court
need not at this point be concerned.
G What is of importance to the present application is ss (11) of s 60, which reads:
'Notwithstanding any provision of this Act, where an accused is charged with an offence referred to
H (a) in Schedule 5;
(b) in Schedule 1,
which was allegedly committed whilst he or she was released on bail in respect of a Schedule 1 offence, the court shall order that the
accused be I 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, satisfies the court that the interests of justice do not require his or her detention in custody.'
It is abundantly clear that the section contains a direction that, pending the outcome of the proceedings and order that might follow, the
(b) in Schedule 1,
which was allegedly committed whilst he or she was released on bail in respect of a Schedule 1 offence, the court shall order that the
accused be I 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, satisfies the court that the interests of justice do not require his or her detention in custody.'
It is abundantly clear that the section contains a direction that, pending the outcome of the proceedings and order that might follow, the
accused is to be detained in custody. However he is given the right to satisfy the court that the interests of justice do not require his
detention. Clearly that implies that he must initiate the application and be given a hearing although there is a provision that in a case where the
accused is not represented the magistrate may invite him to apply for bail. On the face of it a direction that the accused be detained in
custody appears to be in conflict with s 25(2)(d) which prescribes that a detained person is to be released with or without bail. But I think it
more proper to read the whole J
1996 (1) SACR p219
LEVESON J
A section as being adjectival, ie as simply requiring that in order to be released from detention the accused must satisfy the court that it is in
the interests of justice that this be done.
The essential question now is what is embraced by the word 'satisfies'? The Shorter Oxford English Dictionary (1980 edition), gives nine
different meanings. The most appropriate to the context of the section with which we are now concerned is: B
'To furnish with sufficient proof or information; to set free from doubt or uncertainty; to convince.'
The meaning of the word as used in the former Rules of the Cape Provincial C Division was considered in Die Afrikaanse Pers Bpk v Neser 1948
(2) SA 295 (C). Rule 22(4) provided that in answer to an application for summary judgment it was for the defendant to satisfy the Court that he
has a bona fide defence to the application. At 295 Newton Thompson J said:
D 'It is true the authorities show that this is not a heavy onus. "Satisfy" does not mean "prove". I take "satisfy" to mean therefore that the
court must feel that there is a fair probability that the defendant's defence is a good one. At any rate, that it is bona fide.'
E I do not think that this view is conclusive for present purposes. A summary judgment procedure is a special one and clearly what is there
required is not that a defence be proved but that enough be shown to persuade the court that there is a defence to the claim. In other words,
the court does not have to be satisfied that the defence is sound and irrefutable. The standard of proof is not the same as in an ordinary civil
action. F
Under the present statute, however, the court must be satisfied that the interests of justice do not require continued detention in custody.
That involves an inquiry not into the soundness of the defence but as to the question as to whether the interests of justice are to be served.
G The word 'satisfy' came up for consideration in the matter of S v Makoula 1978 (4) SA 763 (SWA). There, at 768B, Lichtenberg AJ said:
'The official version of Act 51 of 1977, namely the Afrikaans text, uses the word "oortuig" . . . whereas the English text uses the word
"satisfied". In my view the correct translation of the words "om te oortuig" is not "to satisfy" but H "to convince". . . . It is obvious that in
order to "convince" a person of the existence of a certain fact or state of affairs more evidential material would be required and/or more
cogent proof thereof than merely to "satisfy" him that such fact or state of affairs exists. Put somewhat differently, I think it is correct to
say that in law a "conviction" in a judicial officer's mind that a fact, etc exists, is not as readily induced as a "satisfaction" thereanent.
Exactly the I same applies to the use of the Afrikaans word "oortuig" and "tevrede stel". It does not follow from the fact that a judicial
officer is "tevrede gestel" or that he has "homself tevrede gestel" that he is therefore also "oortuig daarvan". Just as the words "satisfy"
and "convinced" are not synonymous so also there exists no such synonymy between the Afrikaans words "oortuig" and "tevrede".'
I have already mentioned that the Shorter Oxford English Dictionary gives J
1996 (1) SACR p220
LEVESON J
A 'convince' as one of the meanings of 'satisfy'. I am therefore not persuaded that the latter word, in the current statute, has a restricted
meaning.
The word is also said to bear a limited meaning in AttorneyGeneral, Transvaal v Botha 1994 (1) SA 306 (A). At 328 the Court was there
concerned with the word as used in proceedings where a magistrate has to be 'satisfied' that the plea of an B accused has been correctly
made. That meaning is not the meaning in the present section and I consider that the decision is not relevant to the present inquiry.
In England, under the Matrimonial Causes Act, 1950, the Court had to be 'satisfied' as to the breakdown of the marriage between the parties to
the proceedings. Lord C Denning in Blyth v Blyth [1966] 1 All ER 524 (HL) said:
'The word "satisfied" does not mean "satisfied beyond all reasonable doubt". The Legislature is quite capable of putting in the words "beyond
reasonable doubt" if it meant it. It did not do so. It simply said on whom the burden of proof rested, leaving it to the Court itself to decide
what standard of proof D was required in order to be "satisfied".'
In the same decision, Lord Pearson said at 541:
'The phrase used in s 4(2) of the Act of 1950 is simply "is satisfied" with no adverbial qualification. The formula "satisfied beyond reasonable
doubt" has been a very familiar one for a great many years and if that meaning had been E intended the formula could and should have
been used. The phrase "is satisfied" means in my view simply "makes up its mind". The Court on the evidence comes to a conclusion which,
in conjunction with other conclusions, will lead to the judicial decision. There is no need or justification for adding F any adverbial
qualification to "is satisfied".'
In Australia, Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 equated 'satisfied' to 'an actual persuasion'. 'That means a mind not troubled
by doubt' said Findlay ACJ in Re Woodcock 1957 NZLR 960 CA at 963. Smith J, also in New Zealand, said in Angland v Payne 1944 NZLR 610 (CA)
at 626 that it meant 'a G mind which has reached a clear conclusion'. Findlay ACJ, quoting a Judge from another Court, said if it were to be
expressed as a formula the wording would be 'satisfied with a preponderance of probability arrived at by due caution in the light of the
seriousness of the charge'.
In my opinion, on consideration of all the aforegoing dicta, the word has no other H meaning than that the court is required to be satisfied on a
preponderance of probability.
There is perhaps a tendency to avoid the use of the expression 'burden of proof' I because a bail application is not a criminal proceeding and
because the court is not required to weigh proved facts but to speculate on future conduct on the basis of information laid before it. But it is
clear from the cases cited in the judgment of Van Schalkwyk J in the Ellish case and the cases cited herein that 'onus' is a wellknown concept
in bail proceedings. I do not think there is any purpose in being coy about the use of the word or that courts should shrink from using it simply
because of the nature of the proceeding. If a statute casts upon a party the duty of satisfying the court on a particular point then whatever
language is used he has an onus. And, for the purpose of a bail application, the accused has the onus of J
1996 (1) SACR p221
LEVESON J
A establishing that the granting of bail is in the interests of justice and for that limited purpose the word must have the meaning given in Pillay
v Krishna and Another 1946 AD 946 at 952, aptly quoted in the minority judgment of Southwood J in the Ellish case.
In my opinion the current legislation squarely places the question of onus where it B has always belonged on the accused and I can do no
better than repeat the passage cited by Van Schalkwyk J from the judgment of Howard J in the case of S v Hlongwa (supra at 113):
'The accused bears the onus of proving, on a balance of probabilities, that if bail is granted the interests of justice will not be prejudiced by
his absconding C or tampering with State witnesses. He will have failed to discharge that onus if, on all the evidence, there is a
reasonable possibility that he would tamper with one or more State witnesses if he were released. The accused's past record, particularly
v Krishna and Another 1946 AD 946 at 952, aptly quoted in the minority judgment of Southwood J in the Ellish case.
In my opinion the current legislation squarely places the question of onus where it B has always belonged on the accused and I can do no
better than repeat the passage cited by Van Schalkwyk J from the judgment of Howard J in the case of S v Hlongwa (supra at 113):
'The accused bears the onus of proving, on a balance of probabilities, that if bail is granted the interests of justice will not be prejudiced by
his absconding C or tampering with State witnesses. He will have failed to discharge that onus if, on all the evidence, there is a
reasonable possibility that he would tamper with one or more State witnesses if he were released. The accused's past record, particularly
if it includes a conviction for defeating or attempting to defeat the ends of justice by tampering with a State witness, is clearly relevant in
this connection and, depending on the circumstances, the court may rely D also on the investigating officer's opinion that the accused will
interfere with State witnesses, if released on bail, even though his opinion is unsupported by direct evidence.'
That said, it remains for me merely to say that in the judgment about to be delivered E by my Brother Stegmann, I fully concur.
Stegmann J: This is an appeal by each of four appellants against the refusal of a magistrate to admit them to bail. Ms Van den Heever
appeared on behalf of the appellants. The appeal was opposed by Mr Stander on behalf of the State. F
The appeal is brought in terms of s 65(1) of the Criminal Procedure Act 51 of 1977. In dealing with such an appeal it is of course always
important to keep in mind the provisions of s 65(4):
G 'The Court or Judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such Court or Judge is
satisfied that the decision was wrong, in which event the Court or Judge shall give the decision which in its or his opinion the lower court
should have given.'
In other words, this Court is required to approach the appeal on the basis of the H assumption that the decision of the court below was
correct, and not to interfere with that decision unless 'satisfied' that it was wrong. Generally speaking, such a state of 'satisfaction' will not be
reached by the minds of the members of a Court of appeal unless they are persuaded accordingly. In the ordinary course, therefore, it remains
for the appellant to persuade the Court of appeal that the court below was I wrong. Although the term 'onus' or 'burden' may obviously be used
in broader or narrower senses, its technical connotations relating to the incidence of the burden of proof of facts in a trial action may perhaps
render it an unsuitable term to use in the context of a bail appeal. Whatever terminology may be employed, the idea that must be grasped is
that the Court of appeal is required to uphold the order made by the court below until enough has been done to persuade and satisfy the Court
of appeal that the order was wrong, and, in the ordinary course, it is for the appellant to do whatever has to be done in that regard. J
1996 (1) SACR p222
STEGMANN J
A I mention also the consideration that an appeal relating to the grant or refusal of bail is of a somewhat special nature. This is because the
court of first instance is called upon to exercise a discretion and not to reach a conclusion of law based upon findings of fact. An appeal against
the exercise of a discretion is generally more in the nature of a review than an appeal strictly so called. I considered the authorities B bearing
on that question recently in the matter of S v Mokgobo WLD case No A 1103/95, decided on 19 September 1995.
In the present matter each of the four appellants was arrested by the police during the night of Wednesday 13 September 1995. The charges
against all four were the same:
C (1) murder;
(2) robbing the murdered man of a vehicle;
(3) unlawful possession of a firearm; and
D (4) unlawful possession of ammunition.
So far as appears from the record, none of these charges has been formulated in writing. It is not clear from the record to what extent
precisely the appellants were informed of the grounds for their arrest in accordance with s 39(2) of Act 51 of 1977. E
However, it can be gathered from the record as a whole that appellants 1 and 4, who were the first to be arrested, must have been given to
understand that their arrest was connected with a white Toyota vehicle of the kind frequently used as a taxi, to which they were taken
immediately after their arrest. The first appellant admitted that he had been in the vehicle earlier that evening, and he took the police to the
second appellant, who made a similar admission; and the second appellant F guided the police to the third appellant, who made a similar
admission and was found in possession of a firearm for which he had no licence.
On Friday, 15 September, all four appellants were brought before a magistrate. The record of the proceedings shows that none of them had a
legal representative at that G stage; and that the magistrate duly informed them of their right to appoint a legal representative if they could
afford to do so, and to apply for legal aid if they could not. Each of them stated that he would arrange for his own defence. The magistrate
then postponed the matter to 3 October 1995 for further investigation, the appellants to remain in custody. At this hearing the question of bail
was not raised.
H Before the arrival of the date to which the matter had been postponed, and indeed on 21 September 1995, the Criminal Procedure Second
Amendment Act 75 of 1995, came into operation. It amended the previously obtaining provisions of Act 51 of 1977 relating to bail.
It is apparent that a substantial part of this amending legislation does no more than to I give statutory form to several principles that have
been adopted by the Courts over the years, and which have been in regular use without giving rise to problems calling for solution by means of
amending legislation.
Mr Stander submitted that the amending legislation was not to be read as having produced a complete codification of the factors to be
considered in a bail application.
Of relevance to the present matter is the new s 60(4). It provides: J
1996 (1) SACR p223
STEGMANN J
A '60(4) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the
following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public of any
particular person or the public interest, or will commit a Schedule 1 offence; or
(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or B
(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses
or to conceal or to destroy evidence; or
C (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or
the proper functioning of the criminal justice system, including the bail system.'
There is nothing new in that subsection. For example, before its enactment the D learned authors of Du Toit, De Jager and Others, in their
Commentary on the Criminal Procedure Act at 98B to 910C, had summarised the principles governing the decision to grant or refuse bail as
being concerned with four broad categories of risks relating to uncertain future events. These were:
E (1) the risk of whether the accused would stand his trial, which is now dealt with by s 60(4)(b);
(2) the risk of whether the accused would interfere with State witnesses or the police investigation, which is now dealt with by s
60(4)(c) and (d);
F (3) the risk that the accused might commit other crimes, which is now dealt with by s 60(4)(a) and (d);
E (1) the risk of whether the accused would stand his trial, which is now dealt with by s 60(4)(b);
(2) the risk of whether the accused would interfere with State witnesses or the police investigation, which is now dealt with by s
60(4)(c) and (d);
F (3) the risk that the accused might commit other crimes, which is now dealt with by s 60(4)(a) and (d);
(4) the risk that the release of the accused might endanger law and order or public safety or national safety, which is now dealt with
by s 60(4)(a).
Mr Stander was concerned to point out that s 60(4) should not be read as defining exhaustively the grounds upon which the refusal to release
an accused on bail may G be in the interests of justice. On general principles, there can be no numerus clausus of the grounds which may be
sufficient to justify the conclusion that it is in the interests of justice that an accused person should not be released on bail, and the
Legislature should not be understood as having established an exhaustive list of grounds. In my judgment this submission was correct.
Mr Stander drew an example from the facts of the present case. There are some indications that if the appellants, or some of them, should be
released on bail at the H present time, elements of an angry mob at Rabie Ridge may seize the appellants and kill them. Mr Stander was not
suggesting that the State has power to continue to detain the appellants against their will for their own safety. His point was that the interests
of justice demand that the appellants should be tried, and that if they are I released on bail, with a good chance of being assassinated, no trial
will take place, the truth of what happened in the matter presently under investigation J
1996 (1) SACR p224
STEGMANN J
A may never be known, and the interests of justice may be defeated. However, if s 60(4) is to be read as establishing a numerus clausus of
the grounds justifying the detention of an accused person in the interests of justice, the lastmentioned consideration is irrelevant. B
I hold Mr Stander's submission to be correct. Section 60(4) provides a list of grounds upon which the refusal to release an accused person on
bail is in the interests of justice. However, it is not an exhaustive list. If it is shown that there is a likelihood that a trial will be frustrated by the
assassination of the accused, that is a C factor which must also be taken into account and weighed up in determining whether or not it is in
the interests of justice to release an accused on bail.
Once the amending provisions had come into force on 21 September 1995, the first consequence relevant to the four appellants may well have
been that, in terms of the new s 50(6) of Act 51 of 1977 (as inserted by s 1 of Act 75 of 1995), the D appellants had to be informed as soon as
possible of their right to institute proceedings for their release on bail and, if they so asked, they had to be brought before a lower court as
soon as reasonably possible for consideration of their bail applications; or it may be that they should have been brought before a court and
dealt with in terms of s 50(7). There is nothing to show that anything was done in E this regard immediately after the promulgation of the new
statute on 21 September 1995. Nevertheless, nothing turns on that fact in the present matter.
On the adjourned date, 3 October 1995, all four appellants were represented by Mr Duvenhage, who applied to the magistrate for their release
on bail. The F application was accordingly governed by the new statutory provisions.
The prerequisites for an application for release on bail
At the outset there was nothing in the nature of a written charge against the appellants. Indeed, none was produced at any stage of the bail
application. Mr G Duvenhage found himself in the position of having to enquire what the charges were on which the State claimed to be entitled
to detain the appellants.
The prosecutor informed the appellants, and the court, without any particularity, that the appellants were to be charged with murder, armed
robbery of a vehicle and possession of unlicensed firearms and ammunition, or of an arm and ammunition. H
There was some debate before us of the question whether the prosecutor's vague and informal allegation of an intention to charge the
appellants with these offences, without any particularity, was sufficient to bring either s 25(2)(d) of the interim Constitution Act 200 of 1993, or
s 60(1) of the Criminal Procedure Act 51 of 1977, into play. The relevant provision in the interim Constitution reads:
'25(2) Every person arrested for the alleged commission of an offence shall, in addition to the rights which he or she has as a detained
person, have the right . . . I
(d) to be released from detention with or without bail, unless the interests of justice require otherwise.'
The new s 60(1)(a) of the Criminal Procedure Act (as inserted by s 3 of Act 75 of 1995), reads: J
1996 (1) SACR p225
STEGMANN J A
'60(1)(a) An accused who is in custody in respect of an offence shall, subject to the provisions of s 50(6) and (7), be entitled to be released
on bail at any stage preceding his or her conviction in respect of such offence, unless the court finds that it is in the interests of justice
that he or she be detained in custody.'
B Section 50(6), which is new, makes provision for a person who has been 'arrested for the alleged commission of an offence': he is to be
informed as soon as possible of his right to institute bail proceedings.
Section 50(7), which is also new, makes provision for a person who has been 'arrested on suspicion of having committed an offence, but a
charge has not been C brought against him': he is to be brought before a court not later than the day after his arrest (ie even sooner than the
maximum period of 48 hours as allowed, in somewhat generously defined terms, in s 50(1)). The new, more rapid, court appearance in terms of s
50(7) is so that the accused can
D 'be charged and enabled to institute bail proceedings in accordance with ss (6), or be informed of the reason for his or her further
detention, failing which he or she shall be released'.
These provisions make it apparent that a situation can occur in which a person may E be arrested and held in detention and may not qualify to
institute statutory proceedings for his release on bail. The position appears to be that release on bail, in terms of the statutory provisions, only
becomes a possibility once a detained person has been charged with an offence, or, less formally, once it has been alleged F (presumably by the
person arresting or prosecuting him) that he has committed an offence.
The remedy of a detained person who has not been charged, and against whom no allegation has been made that he has committed an offence,
is not to seek his release on bail: it is to move the court to protect his liberty by means of the common law G remedy of the interdictum de
homine libero exhibendo, a common law remedy which has now been entrenched by s 25(1)(e) of the interim Constitution.
In the present matter, the State's allegations that the appellants had committed offences, or were suspected of having done so, were
extraordinarily vague and unspecific. The situation may well have been one in which, unless the State charged H the appellants, or at least
made reasonably clear and specific allegations against them which prima facie justified their arrest and detention, the appellants might have
been entitled to their release in terms of the interdictum and s 25(1)(e) of the interim Constitution. However, the appellants chose not to take
that route. Instead, by applying for their release on bail, they chose to acknowledge tacitly that they had I been lawfully arrested and
sufficiently informed of the charges on which they were being held. A statutory bail application was accordingly competent.
The inquisition or investigation
In pursuance of the application, Mr Duvenhage called the evidence of the first appellant; after him that of the fourth appellant; then that of the
second appellant; and finally that of the third appellant. The prosecutor crossexamined each of them. The magistrate also took part in the
proceedings in the arena, in a manner which can appropriately be described as 'inquisitorial' or 'investigative', and as had been suggested in J
1996 (1) SACR p226
STEGMANN J
In pursuance of the application, Mr Duvenhage called the evidence of the first appellant; after him that of the fourth appellant; then that of the
second appellant; and finally that of the third appellant. The prosecutor crossexamined each of them. The magistrate also took part in the
proceedings in the arena, in a manner which can appropriately be described as 'inquisitorial' or 'investigative', and as had been suggested in J
1996 (1) SACR p226
STEGMANN J
A the case of Ellish en Andere v Prokureurgeneraal van die Witwatersrandse Plaaslike Afdeling 1994 (4) SA 835 (W), at 840E841B, 848BC,
849F, 850EF. The magistrate's consequent inquisitorial or investigative interventions are to be seen at pp 13 to 18 and 34 to 36 of the record.
In my respectful opinion, the magistrate's response to the invitation to conduct an B inquisitorial proceeding illustrates very clearly that an
inquisitorial or investigative proceeding is not easily reconcilable with a judicial proceeding, any more than the conduct of an inquisitor or an
investigator can be expected to be reconciled with the conduct required of a Judge. A Judge must at all times be seen to preserve his C
impartiality. An inquisitor or investigator can seldom function effectively if he does so. With great respect to the learned Judges who have so
interpreted the law, with the consequence that I am bound by the principle of stare decisis, I consider the introduction into this jurisdiction of
an inquisitorial proceeding to be unfortunate. Understandably, Mr Stander took up the attitude that he, on behalf of the State, D could not
defend the inquisitorial or investigative nature of the magistrate's interventions. In a criminal trial, such interventions would have had to be
recognised as irregularities, giving rise to the further question of whether a failure of justice had resulted. However, on the strength of the
decision in Ellish's case, the magistrate evidently has power to interrogate witnesses in a bail application, as he did, if the bail application is one
to which Ellish's case applies. I come later to the question E whether the present matter was one to which Ellish's case does apply.
In the present matter the appellants had the benefit of legal representation. However, in bail applications by unrepresented accused persons,
the inquisitorial nature of the magistrate's functions, when Ellish's case is applicable, will make it F more important than ever that the accused
should be fully apprised of his right to remain silent, not only in general terms, but in particular his right to decline to answer any question of a
kind which might elicit an incriminating answer. Indeed, as questions of that nature are not always immediately obvious, it may be that an
unrepresented accused should be told whenever a question is of a kind which might elicit an incriminating answer, and that he should be
reminded that he is not obliged G to answer it. It may be that he should also be informed that no adverse inference (eg to the effect that he is
concealing his guilt), may validly be drawn from his refusal to answer such a question.
The proceedings resumed the next day, 4 October 1995. The prosecutor then applied for the recall of the first appellant for further cross
examination and this was H allowed by the magistrate. At the end of the further crossexamination Mr Duvenhage closed the case for the
appellants.
Thereafter the prosecutor called the evidence of Sergeant Maxon Hlongwane who had taken over as investigating officer in the matter on Friday
15 September 1995, two days after the arrest of the appellants on Wednesday 13 September 1995. Sergeant Hlongwane had not been involved
at the time of the arrest. The prosecutor also called I Mr Vasco Manuel Da Gama, a member of the Rabie Ridge Taxi Association and of an
organisation which he described as the Community Police Forum. He testified that the Community Police Forum was a group of persons from a J
1996 (1) SACR p227
STEGMANN J
A variety of organisations in what he vaguely referred to as 'the community', who had come together to address the problems of policing the
community, and generally to help the community. He testified further that on 14 September 1995 the Community Police Forum and the Rabie
Ridge Taxi Association had together appointed a task force, or reaction unit, of which he was a member. B
The apparent facts so far ascertained
What emerged from the evidence of these witnesses may be summarised as follows. C A certain Mr Webber, also known as Tysac, who has
apparently disappeared and is thought to have been murdered, is reputed to be the owner of a substantial number of taxis. He is an influential
and wellrespected figure in the community at Alexandra. He is a member of a taxi association whose members provide transport between
Johannesburg and Pietersburg. In the four months preceding 13 September 1995 some eight taxis had been hijacked. Some of them had been
the property of D Webber. In some cases the drivers or owners had disappeared in circumstances suggesting that they had been killed. This
state of affairs caused considerable dissatisfaction in the area of Alexandra and Rabie Ridge and Ivory Park where these robberies and
suspected murders had occurred. Wednesday 13 September 1995 was the day on which Webber is assumed to have been killed in one of his
taxis which was taken by the robbers. E
The information presently available to the State is the following. A certain Ms Maria Masekwaneng, who did not testify at the bail hearing,
evidently took a seat in a taxi F at Alexandra at about 17:30 on 13 September 1995. The taxi was bound for Rabie Ridge. Ms Masekwaneng
evidently knows Webber as Tysac, and she is in a position to testify that he was the driver of the taxi in question. The taxi filled up and left for
Rabie Ridge. During the course of the journey, Ms Masekwaneng noticed the other passengers. Some of them alighted at various stops along the
way. Eventually she herself alighted. She will apparently testify that at that stage the front seat was occupied by the driver, Webber, and two
passengers, a man and a G woman, and that there were four men on the back seat. At an identification parade held some three weeks later, on
the morning of 4 October 1995, she pointed out the first and second appellants as two of those four men whom she had seen in the taxi. If that
was a reliable identification, the first and second appellants were two of the four men who left Alexandra at 17:30 on 13 September in Webber's
taxi and travelled with him to Rabie Ridge.
Whether the identification parade was properly held, and whether the resultant identification was reliable, are questions very much in dispute
and are amongst the major disputes which will have to be thrashed out at the trial. For the purposes of H the bail application it was for the
magistrate to assess, in the light of the other relevant circumstances, the strength of the State's case in this regard.
According to Sergeant Hlongwane, the State's information is that the deceased was I shot at Rabie Ridge at about 18:30 on 13 September. He
is awaiting a report from the mortuary to hear whether any bullet was recovered from a body there. He did not say whose body. The suggestion
seems to be that Webber's body may have been found and taken to the J
1996 (1) SACR p228
STEGMANN J
A mortuary. However no evidence of identification of the body was given at the bail application.
I turn now to the evidence given by the four appellants.
First, second and fourth appellants are all related to each other, and the third appellant is said to have a relationship with the first appellant's
sister. They all have B family connections in the Ladysmith area in KwaZuluNatal.
The eldest of them is the fourth appellant, aged 33. He is married and has two young children. His wife works as a teacher and lives at
Volksrust. He has for six years been employed as a taxi driver by one Vilazi. He is a member of a taxi association known as WATA. He ferries
passengers between Johannesburg and C Ladysmith. He earns R300 a week and can afford bail of R2 000. He grew up in Johannesburg and for
15 years lived at 513A White City, Jabavu. His parents and other members of his family still live there. He himself moved out to a room at 3493
Orlando to make place for the growing family. On 13 September 1995 he drove back from Ladysmith and did not get back to his room until about
19:30, ie about an hour after the suspected murder of the deceased at Rabie Ridge. He knows nothing about the relevant incident. He went to
sleep in his room. D
The next in age is appellant 2, aged 30. He is unmarried. He has two children by different mothers, neither of whom live with him. He too lived,
at one time, at 513A E White City where accused 4 had lived. Members of his family still live at 513, which is presumably next door. He himself
has moved to 1477C White City. He too is a member of the taxi association WATA. He works as a queue master at the taxi boarding point at
Carlton Centre for taxis plying between the city centre and Zola. F He earns R200 a week and can afford bail of R2 000.
The next in age is appellant 3, aged 24. He was born in either Harrismith or the Ladysmith area of KwaZuluNatal. He seemed unsure which. He
grew up there to the age of about 10 when he came to Johannesburg. Ever since then he has lived at 161A Dube Hostel, Soweto. He is not
married but has a 6year old child who is G dependent on him and lives with the mother. He makes a living by buying apples and other food at
City Deep Market and selling it at the taxi boarding point at Carlton Centre where accused 2 works as a queue master. Because he sells to WATA
has moved to 1477C White City. He too is a member of the taxi association WATA. He works as a queue master at the taxi boarding point at
Carlton Centre for taxis plying between the city centre and Zola. F He earns R200 a week and can afford bail of R2 000.
The next in age is appellant 3, aged 24. He was born in either Harrismith or the Ladysmith area of KwaZuluNatal. He seemed unsure which. He
grew up there to the age of about 10 when he came to Johannesburg. Ever since then he has lived at 161A Dube Hostel, Soweto. He is not
married but has a 6year old child who is G dependent on him and lives with the mother. He makes a living by buying apples and other food at
City Deep Market and selling it at the taxi boarding point at Carlton Centre where accused 2 works as a queue master. Because he sells to WATA
members, accused 3 regards himself as a member of WATA. About June 1995 he bought himself a firearm and some ammunition. He claims to
need it for his H own protection. He acknowledges that he has no licence to possess it.
The youngest of the four appellants is appellant 1, aged 23. He lives with his parents at 579A White City, Jabavu. His uncle, Siphiwe Petrus
Mbele, is a taxi owner. Although the first appellant has no driver's licence, he states that his uncle occasionally employs him to drive a taxi and
pays him for doing so. He regards himself as a member of WATA. He can put up R2 000 for bail. He is unmarried but I has two children by
different mothers, neither of whom lives with him.
The first, second and third appellants testified that they spent Wednesday, 13 September 1995 in each others' company at White City. That
evening they were all three at 513A White City, a house at which none of them lived. As already mentioned, it was the house of the family of
the fourth appellant which he claimed to have left to go and live in his room at J
1996 (1) SACR p229
STEGMANN J
A 3493 Orlando. Fourth appellant is not said to have been present that evening.
At about 20:00 a certain Ace Zwane arrived unexpectedly at 513A White City. He was accompanied by an unidentified companion. Ace Zwane is
known to the first, second and third appellants as a resident of the Nancefield Hostel, and as a taxi driver who is also a member of WATA. Ace
Zwane and his companion were in a B white Toyota of a kind frequently used as a taxi. It was not the taxi he usually drove. He asked the first,
second and third appellants to arrange to park it somewhere for him. They could not park it at 513A White City because there was no garage,
nor even a fence and gate. It would have been unsafe to have left it in the open. First, second and third appellants, Ace Zwane and his
companion, then went C in the white Toyota to the house of a person first referred to by first appellant as Mr Mopanando, and later as Mr
Mpalala. It was house 7378 Orlando West, at a place the first appellant also referred to as 'Travern'. None of the three appellants noticed
anything wrong with the white Toyota. The window beside the driver's seat was not broken. They did not notice any damage to the rear view
mirror on the D driver's side. They saw no sign of blood or broken glass on the front seats or the floor in front of them.
After the white Toyota had been parked, Ace Zwane and his companion somehow dropped out of the picture.
First, second and third appellants evidently took a taxi back to 513A White City. From there, first appellant's uncle, Siphiwe Petrus Mbele, drove
him to 3493 E Orlando, in Makuba Street, where the fourth appellant had his room. First appellant went to sleep there with fourth appellant.
First appellant testified that he had regularly used that room whenever fourth appellant was away in Natal, and that he had not expected the
fourth appellant to be there that night.
The second appellant evidently returned to his home at 1477C White City, and the third appellant to 161A Dube Hostel. F
The police had meanwhile been investigating the disappearance of Webber and his taxi. Somehow they traced the taxi to the house of the man
referred to as Mr Mopanando or Mr Mpalala. Evidently by the time the police saw the taxi the driver's window had been broken, there was
damage to the rear view mirror on the driver's side which appeared to have been caused by a bullet, and there was a considerable amount of
blood on the front seats of the taxi and on the floor in front G of them. There was also broken glass on the floor in front.
There was no evidence to show what had become of Webber. The unspecified charge of murder seems to suggest that the State believes him
to have been killed. However there was no evidence that it was his body that had been found and taken to the mortuary. H
Mr Mopanando, or Mpalala, accompanied the police to 3493 Orlando. The police found the first and fourth appellants sleeping there and they
arrested them both some time between 22:00 and 23:00 on 13 September. After that the first appellant guided the police to the house of the
second appellant, and the second appellant was arrested. I
There is a dispute over the question whether the first appellant acted J
1996 (1) SACR p230
STEGMANN J
A voluntarily or as a result of police assaults. It is a dispute to be resolved at the trial.
The second appellant in turn guided the police to the third appellant at Dube Hostel, and they arrested the third appellant and attached the
unlicensed pistol and B ammunition which they found in his possession as the second appellant had said they would.
There is also a dispute over the question whether the second appellant acted and spoke voluntarily or as a result of police assaults. That too is
a matter to be resolved at the trial.
C I return now to the evidence of the State's witnesses.
On 14 September 1995, the day after the disappearance of Mr Webber and his taxi, Mr Da Gama was instrumental in forming the task force
which I have already D mentioned. It consists of two unnamed members of an unspecified group of officials at Alexandra, two members of the
Rabie Ridge Taxi Association, one of whom is Mr Da Gama and the other unnamed, and an additional unidentified community leader. This task
force intends to assist the investigating officer to establish who committed the crimes and who is behind them. Mr Da Gama pointed out that
there are many taxi associations and that there is fighting between their E respective members. He evidently suspects that there may have
been more behind the attack on Mr Webber than simply the desire to rob him of the taxi he was driving.
At about 08:30 on 14 September 1995 Mr Da Gama was called to the police station at Rabie Ridge. Word had got out that persons alleged to be
the assailants of Mr Webber had been arrested and were being held there. An angry crowd, which F Mr Da Gama estimated at between 300 and
400 people, had assembled at the police station and were demanding that the persons who had been arrested should be released to them. Mr
Da Gama said that he had had to act as a gobetween so as to calm the angry crowd on the one hand and enable the police to proceed with
their investigation on the other.
G At about 11:00 Mr Da Gama and other members of the task force were admitted to the police station at the entrance to the police cells.
They stood on one side of a row of steel bars shutting off the cells. The four appellants were on the other side. Neither the third nor the fourth
appellant spoke. H
There is a dispute over the question whether the first and second appellants spoke freely and voluntarily or under the threat or the fear of
assaults. That dispute will have to be tried in due course. I
According to Mr Da Gama, the second appellant revealed a conspiracy. The second appellant is said to have stated that he knew Ace Zwane
and that Ace Zwane had put them up to robbing Mr Webber of his taxi. A few days before 13 September 1995 Ace Zwane had taken the first
appellant to the taxi rank at Alexandra and had pointed out to the first appellant the precise taxi which they were to take. The first appellant
had then told Mr Da Gama and the task force that he had shot Mr Webber on 13 September 1995.
Mr Da Gama also testified that the vehicle in question, which he referred to as a Kombi but which was evidently a Toyota, was parked at the
police station and that he had looked at it that morning, 14 September. The J
1996 (1) SACR p231
STEGMANN J
A driver's window had been broken; the rear view mirror on the driver's side had been pierced by a bullet; the front row of seats including the
driver's seat were covered in blood; the floor was full of blood; and on the outside of the vehicle, on both sides it could be seen that blood had
leaked out and had been driven along the sides of the vehicle by its passage through the air. B
1996 (1) SACR p231
STEGMANN J
A driver's window had been broken; the rear view mirror on the driver's side had been pierced by a bullet; the front row of seats including the
driver's seat were covered in blood; the floor was full of blood; and on the outside of the vehicle, on both sides it could be seen that blood had
leaked out and had been driven along the sides of the vehicle by its passage through the air. B
The following day, Friday 15 September, was the day on which Sergeant Hlongwane first took over as the investigating officer. He testified that
he had seen the vehicle in question on that day. He too had seen that the window on the driver's side was broken and the rear view mirror on
that side was damaged, though he did not claim to have seen a bullet hole through it. He also testified to signs of dried C blood on the front
seat and the floor of the vehicle, and signs of broken glass.
On this evidence the magistrate considered the question of whether or not to order the release of any of the appellants on bail in the light of
the relevant provisions of D Act 51 of 1977, as amended by Act 75 of 1995. His conclusion was that he should not.
The function of this Court is to consider whether it has been satisfied, in terms of s 65(4), that the magistrate's decision was wrong.
E The learned presiding Judge, Leveson J, has dealt with the relevant legal principles which have obtained since 21 September 1995 when the
provisions of Act 51 of 1977, relating to bail, were amended by the 1995 Act. I concur respectfully with his reasons and his conclusions. I wish
only to add the following by way of summary of the application of the law to the facts of the case, together with my conclusions on F the
question of the onus in a bail application.
1. The appellants were 'arrested for the alleged commission of an offence' as contemplated by the new s 50(6), or 'arrested on
suspicion of having G committed an offence' without being charged, as contemplated by the new s 50(7). If s 50(7) applied, its
further requirements were sufficiently complied with to enable the appellants to institute bail proceedings in accordance with s
50(6). In either event, therefore, the appellants had H to be informed as soon as possible of their right to institute bail
proceedings, and had to be brought before a lower court as soon as possible for consideration of a bail application.
2 I .As the appellants had been 'arrested for the alleged commission of an offence' as contemplated by s 25(2) of the interim
Constitution, Act 200 of 1993, they had
(a) the rights given to 'detained' persons by s 25(1), including the right, originating in the common law, and constitutionally
entrenched as the right
' (e) to challenge the lawfulness of his or her detention in person before a court of law and to be released if such detention is unlawful'
a right which the appellants did not seek to exercise; and
(b) the rights given to 'arrested' persons by s 25(2) of the interim Constitution, including the right
'(d) to be released from detention with or without bail, unless the interests of justice require otherwise.' J
1996 (1) SACR p232
STEGMANN J
A 3. Irrespective of whether an application for release with or without bail is an inquisitorial and investigative proceeding (which must
in a good many cases be expected to differ from a proceeding in which a judicial officer acts judicially), we are bound by the
decision in Ellish v Prokureurgeneraal (supra) to accept that s 25(2)(d) imposes no onus of any kind on the State, and still less
any onus on the arrested person. At the same time, I hold that nothing in s 25(2)(d) of the interim Constitution precludes the
Legislature from validly enacting a statutory provision which does, expressly or by implication, regulate the incidence of an onus
in certain bail applications. B
4. The new s 60(11) has been set out in the judgment of the learned presiding Judge, and I shall not repeat it.
5. The question of whether the new s 60(11) of the Criminal Procedure Act conflicts with s 25(2)(d) of the interim Constitution in
regard to the question of onus was briefly dealt with in argument before us. The suggested conflict, as I understood it, was
that whereas s 25(2)(d) of C the interim Constitution entitles every arrested person to his release with or without bail unless,
so it is said, the State discharges the onus of persuading a court that the interests of justice require his continued detention in
custody, the new s 60(11) of Act 51 of 1977 provides to the contrary that, in the case of a person charged with any one of
certain D specified crimes, the court is obliged to order his detention in custody unless he discharges the onus of persuading
the court that the interests of justice do not require his detention in custody.
Mr Stander submitted that the resultant conflict relating to the onus was one which sooner or later would have to be dealt
with by the Constitutional Court. E
I do not agree. It seems to me, with respect to counsel, that there is a fallacy in this suggestion.
6. I shall now depart from my summary of the application of the law to the facts in order to expose the fallacy. In this discussion I
intend to use the phrase 'onus of persuasion'. I derive it from a recollection that the onus F of proof has also been described as
'the risk of nonpersuasion'. For reasons which I do not propose to enlarge on, I accept it to be clear that whilst facts are
susceptible of proof, considerations such as the best interests of justice, are not (save insofar as they may in a particular case
be based upon provable facts). The onus of persuasion is a wider G concept than the onus of proof. The latter tends to be used
in a sense limited to proof of facts.
Before the interim Constitution came into operation on 27 April 1994, the law relating to bail applications was largely codified in
H Chapter 9 (ss 58 to 71) of Act 51 of 1977, together with a few other provisions in the Act, including s 304(2)(c)(vi), ss
304A(1)(b), 307, 308A, 309(3), 309(4)(b), 321(1)(b) and I 321(2), and possibly other sections. Such few gaps as were to
be found in the statutory provisions were effectively covered by the common law: cf S v Hlongwane 1989 (4) SA 79 (T).
The law relating to bail J
1996 (1) SACR p233
STEGMANN J
A applications was therefore reasonably well settled. The result was that in practice most persons arrested for the purposes
of being brought to trial were routinely released, without argument, either by a commissioned police officer in terms of s 59,
or by a judicial officer in terms of s 60, on such bail as they could reasonably B afford and as seemed appropriate to ensure
their attendance at the trial. Where the State opposed an application for release on bail it was generally because the crime
with which the applicant had been charged, or the circumstances of his arrest, or his previous record, or notorious
occurrences in the streets, C proclaimed a substantial risk that if he were to be released the interests of justice would be
defeated in that he would be unlikely to stand his trial; or that he would be likely to endanger the safety of the State, or a
section of the public, or particular individuals; or to commit a crime; or to interfere with witnesses or the police
investigation. D
The learned presiding Judge has traced the historical record which shows how it came to be accepted that when the Attorney
General opposed an application for release on bail, the E accused person, as the applicant, had an onus. Essentially the
onus was that of persuading the court that the risks facing the interests of justice in the particular case were not such that
the interests of justice were likely to be defeated if he were to be released on the security of adequate bail and such other
F conditions as were appropriate to the case. In effect, the best interests of justice (including, of course, the presumption
of innocence, and every individual's common law right to his liberty), as identified by a judicial officer in the particular
circumstances, determined whether or not any particular accused and detained G person should be released on bail or not.
This was well settled and in practice worked well. I am not aware of any suggestion that the law as so laid down was unjust
General opposed an application for release on bail, the E accused person, as the applicant, had an onus. Essentially the
onus was that of persuading the court that the risks facing the interests of justice in the particular case were not such that
the interests of justice were likely to be defeated if he were to be released on the security of adequate bail and such other
F conditions as were appropriate to the case. In effect, the best interests of justice (including, of course, the presumption
of innocence, and every individual's common law right to his liberty), as identified by a judicial officer in the particular
circumstances, determined whether or not any particular accused and detained G person should be released on bail or not.
This was well settled and in practice worked well. I am not aware of any suggestion that the law as so laid down was unjust
or in any need of fundamental reform.
On the other hand, there were statutory provisions, notably s 30 of the Internal Security Act 74 of 1982, by virtue of which
the H ordinary power of the courts to consider and decide whether or not to release a detained person on bail or on
warning, was ousted in certain circumstances. The same may be said of s 61(1) of Act 51 of 1977. The ordinary right or
liberty of an accused and I detained person to approach a court for determination of the question whether the best
interests of justice would be served by his continued detention, or his release with or without bail, was truncated by both of
these measures. The measure in the Internal Security Act particularly was criticised as an unjust measure. The basic reason
for dissatisfaction was that it removed from the courts the power of decision whether the interests of justice would best be
served by the continued detention of the accused person or by his release, with or without bail, and that it placed that
power in the hands of the executive. This was a measure which cried out for reform. What was needed was a provision
that J would restore to the courts the power to decide in all circumstances where the best
1996 (1) SACR p234
STEGMANN J
A interests of justice lay in such a conflict between the individual's right to his liberty and the desire of the executive to
deprive him of it. Such restoration of the ordinary jurisdiction of the courts would bring the simultaneous restoration of the
right of every detained individual to claim adjudication by a court on the question whether the interests of justice would be
served by his continued detention or his release, with or without bail. B
This is the background to the enactment in s 25(2)(d) of the interim Constitution of the fundamental right of every person,
when arrested for the alleged commission of an offence, to be released from detention with or without bail unless the
interests of justice require otherwise. As I understand the intention of that C fundamental right it is to ensure that, while
the interim Constitution stands, every accused person in detention will have the right to approach a court to determine, in
accordance with the laws relating to bail as they existed when the Constitution was enacted, or as they may be varied
later (so far as remains consistent with the Constitution), whether, pending the trial, the D interests of justice will best be
served by the continued detention, or by the release of the accused. What is aimed at is the truncation of the powers of
the Legislature ever again to take away the liberty remaining to an accused and detained person to E approach a court of
law to adjudicate upon the best interests of justice pending his trial, and never again to permit the Legislature or the
Executive to take away or truncate the jurisdiction of the courts to adjudicate on that question.
F When s 25(2)(d) of the interim Constitution first came before the courts, its primary intention to truncate the previously
sovereign powers of the Legislature by outlawing for the future any legislation such as s 30 of the Internal Security Act 74
of 1982, and by accordingly guaranteeing the fundamental right of the G individual to the benefits of the ordinary law of bail
as administered by the courts, seems to have been overlooked. It was not recognised that there is no good reason to
believe that the framers of the interim Constitution had any intention to interfere H with the basic principles of the ordinary
law of bail as administered by the courts. Attention became fixed on the language of s 25(2)(d) of the interim Constitution.
The word 'unless', read in the context of the wide terms of s 35(3), and the 'lawmaking' powers, which it was suggested
had thereby been vested in the judiciary, was taken to have a special significance. The result was an interpretation of s
25(2)(d) as if it had contained the words which I have inserted in brackets:
'(d) to be released from detention with or without bail, unless (the State discharges the onus of proving that) the interests of justice
require otherwise.' I
(See Magano and Another v District Magistrate, Johannesburg and Others (1) 1994 (2) SACR 304 (W).)
This was, if I may be permitted a respectful comment, a revolutionary step in the law relating to bail. By assuming lawmaking
powers, a member of the judiciary reversed the incidence of the wellestablished J
1996 (1) SACR p235
STEGMANN J
A onus of persuading a court in a bail application. In my respectful view there was no sufficient reason to believe that the
intention of the framers of the interim Constitution was to revolutionise the settled law relating to bail in that way, or to
invest the judiciary B with such lawmaking powers. On the contrary, it is clear to me that the interim Constitution is based
upon the doctrine of the separation of the powers of Legislature, Executive and Judiciary; that, leaving aside the special
position of the Constitutional Court, the judiciary has not been invested with legislative powers; and C that, by means of s
25(2)(d), the framers of the Constitution wished to protect and entrench the rights of all persons under the ordinary and
settled law relating to bail by precluding the Legislature or the Executive from preventing anyone from enjoying the benefit
of those rights (save for such legislative adjustments as D would not conflict with the Constitution). That could only be
achieved by ensuring that the power to decide on bail always remains within the exclusive jurisdiction of judicial officers.
That is so obvious that it hardly needs to be spelt out. Nevertheless, if any words are implicit in s 25(2)(d) of the interim
Constitution, E they are not the words read into the section, by implication, by the decision in Magano's case; they are the
following words which I have inserted in brackets:
'(d) to be released from detention with or without bail, unless (a court F or a judicial officer is of opinion that) the interests of justice
require otherwise.'
Read in this way, it becomes clear that s 25(2)(d) upholds the jurisdiction of the courts, as against the Legislature and the G
Executive, to decide upon bail applications; and that the section in that way protects the fundamental liberty of accused
and detained persons to a judicial determination of a bail application in accordance with wellestablished law. There was no
intention to revolutionise the relevant principles of the law governing bail H applications. Section 25(2)(d) has nothing
whatever to do with the incidence of any onus of persuasion.
I Another aspect of the reading of s 25(2)(d) adopted in Magano's case is that the right given to an arrested person to be
released from detention with or without bail is seen as opposed to, or as standing in contradistinction with, the interests of
justice.
It is that somewhat uneasy reading which seems to me to have resulted in the conclusion that the section imposes an onus on
the State. I would suggest that the reading takes too narrow a view of the interests of justice. The interests of justice do
not and cannot exclude the protection of a man's right to his liberty. That right has always been one of the fundamental
concerns of the common law, and now of the interim Constitution. Nor do the interests of justice exclude the aspect of a
man's right to liberty which remains to him when he is arrested, viz his right to seek his release, with or without bail, pending
his trial.
J Therefore, I understand s 25(2)(d) to mean, by implication, that
1996 (1) SACR p236
STEGMANN J
A every person arrested for the alleged commission of an offence has a fundamental procedural right to go before a court of
his trial.
J Therefore, I understand s 25(2)(d) to mean, by implication, that
1996 (1) SACR p236
STEGMANN J
A every person arrested for the alleged commission of an offence has a fundamental procedural right to go before a court of
law to seek his release with or without bail; and that the related substantive fundamental right which he enjoys is the right
to have a court weigh up all of the relevant interests of justice, including those which favour his release pending the trial
(the presumption B of his innocence; the factors pointing to a likelihood that he will stand trial; requirements that can be
laid down to ensure that he does so; and so forth), and those which may be adverse to his release pending the trial (the
strength of the State case; and the various risks to the interests of justice already mentioned); and C that he has a
fundamental right to be released with or without bail unless, in the particular circumstances of the case, the interests of
justice adverse to his release outweigh the interests of justice that favour his release.
D Read in this way, as I think it must be, s 25(2)(d) has nothing to do with the determination of the incidence of the onus of
proof, or the onus of persuasion.
However, the revolutionary step taken in Magano's case resulted E in what I would respectfully characterise as a counter
revolutionary step taken in Prokureurgeneraal van die Witwatersrandse Plaaslike Afdeling v Van Heerden en Andere 1994
(2) SACR 469 (W), and by the majority of a Full Court in Ellish en Andere v Prokureurgeneraal, WPA 1994 (2) SACR 579 (W).
F It was there held that the previous statements of the law to the effect that in an opposed bail application the applicant had
the onus to persuade the court that the interests of justice would best be served by his release, were wrong; that the
decision in Magano's case, that the onus had by s 25(2)(d) of the interim G Constitution been shifted to the State, was
also wrong; and that a bail application is to be conducted without either the applicant or the respondent having any burden
to persuade the court about how the interests of justice will best be served.
This counterrevolutionary step appears to suffer from a practical shortcoming. In a case in which the interests of justice
which H favour the release of the applicant pending his trial (viz the interests of justice in protecting the liberty of the
individual and upholding the presumption of his innocence until the contrary is proved), are about evenly balanced by the
other interests of justice which favour his continued detention (essentially, considerations to ensure that the trial can duly
take place and that I it will be of a quality that will have a good chance of getting at the truth), the judicial officer faced
with the decision, will not know what to do. Under the law as stated before 27 April 1994, replete with the wisdom of two or
three generations of Judges, an applicant for his release with or without bail pending his trial would fail unless he succeeded
in persuading a court that the interests of justice which favoured the protection of his liberty outweighed the interests of
justice which would be put at risk by his release.
However, under the law as stated in Ellish's case, by which I J
1996 (1) SACR p237
STEGMANN J
A respectfully acknowledge this Court to be bound, that accumulated wisdom has ceased to reflect the law. The applicant is
no longer required to persuade the court to release him. Neither is the AttorneyGeneral or his representative, as the
respondent, B required to persuade the court not to release him. It is all left to the magistrate or Judge who is to decide
the issue. He must take the initiative and conduct an inquisitorial proceeding. If the first stages of his inquiry reveal a more
or less equal balance between those interests of justice which favour the release of the applicant with or without bail, and
those interests of justice which do not, C the inquisitor is presumably required to keep on digging until his enquiries satisfy
him one way or the other. As the present case has shown, the effective discharge of the role of inquisitor or D investigator
is going to make it difficult in many cases to preserve a judicial impartiality, or even the appearance of it.
What emerges from this discussion is the important point that s 25(2)(d) of the interim Constitution does not deal with the E
question of onus in a bail application at all. There is therefore no question of any such conflict between s 25(2)(d) of the
interim Constitution and the new s 60(11) of Act 51 of 1977 as Mr Stander postulated in his argument. This would remain
the F position even if Ellish's case were one day to be reconsidered. On any basis, s 25(2)(d) of the interim Constitution
does not deal with the question of onus at all, expressly or by implication.
On the other hand, the new s 60(11) plainly and unambiguously places an onus upon certain accused persons to satisfy a
court G that those interests of justice which favour their release pending a trial, outweigh the interests of justice which are
adverse to their release.
7. Therefore, when s 60(11) is applicable, there can be no question of a magistrate or Judge acting inquisitorially or investigatively. In
such cases at least, a magistrate must act judicially; and on the material laid before H him, he must adjudicate on the question
of whether the applicant has discharged the onus placed upon him by s 60(11).
8. In the present matter the appellants were charged with offences referred to in the new Schedule 5 of Act 51 of 1977. The
magistrate held the consequence to be that the new s 60(11) imposed on them the onus of satisfying him that the interests of
justice did not require their detention in custody. In adopting this approach the magistrate was undoubtedly correct. I
9. Relying on Ellish's case the magistrate acted inquisitorially or investigatively, and in so doing he descended for a period into the
arena of conflict between the appellants and the State.
In my judgment this was an error. Ellish's case was decided before the new s 60(11) placed an onus upon a bail applicant who
falls within its provisions. Ellish's case continues to govern bail applications which are not regulated by s 60(11). But where s
60(11) is applicable, the applicant for bail undoubtedly has an onus to discharge; there is no room for the application of the
decision in J
1996 (1) SACR p238
STEGMANN J
A Ellish's case; and there is accordingly no warrant for any inquisitorial or investigative action on the part of the judicial
officer hearing the application.
10. I conclude therefore that the magistrate committed an irregularity to the extent that he acted inquisitorially or investigatively in the
present matter. However it was not suggested, on behalf of the B appellants, that any failure of justice had resulted, and it is therefore
unnecessary to take the question of the irregularity any further.
11. As to the question whether any of the four appellants had discharged the onus of satisfying him in the necessary respects, the
magistrate came to the conclusion that they had not. I have summarised the facts. With regard to the first, second and third appellants, I can
find no good reason to think that the magistrate ought to have been satisfied that the interests of justice did not C require their detention in
custody. The offences alleged are very grave, and the State's case against each of them, so far as it can be seen at the early stage of
preparation that had been reached when the bail application was made, appears to have been D comparatively strong. Those interests of
justice, adverse to their release prior to their trial, appear to outweigh quite substantially the interests of justice which favour their release.
Certainly, the first, second and third appellants did not produce material which ought to have satisfied the magistrate to the contrary. E
12. The case of the fourth appellant is different. I have mentioned his personal circumstances. They tend to favour the view that, if
released on bail, he will probably stand his trial. The State's case against the fourth appellant, at this stage, is very weak. Mr Stander was
custody. The offences alleged are very grave, and the State's case against each of them, so far as it can be seen at the early stage of
preparation that had been reached when the bail application was made, appears to have been D comparatively strong. Those interests of
justice, adverse to their release prior to their trial, appear to outweigh quite substantially the interests of justice which favour their release.
Certainly, the first, second and third appellants did not produce material which ought to have satisfied the magistrate to the contrary. E
12. The case of the fourth appellant is different. I have mentioned his personal circumstances. They tend to favour the view that, if
released on bail, he will probably stand his trial. The State's case against the fourth appellant, at this stage, is very weak. Mr Stander was
constrained to concede as much. There is nothing of F any substance to link him with the crimes. The mere fact that he and the first appellant
were sleeping in the same room on the night of 13 September is not enough to link the fourth appellant to the crimes. The fourth appellant has
stated his alibi. At the relevant time he was engaged in his ordinary work, driving a taxi back G from Ladysmith. Mr Stander urged the point that
if the fourth appellant were to be released on bail he could be assassinated by an angry mob at Rabie Ridge who may think that because he is
an accused, and because of other factors that link him to the other appellants, such as his membership of WATA, and his blood relationship, he
can be assumed to be guilty. If the fourth appellant H were to be assassinated, the interests of justice which require that he should stand his
trial would be defeated.
That is not an irrelevant factor. However in the present matter it is not a strong enough likelihood to justify depriving the
fourth I appellant of his freedom against his will. The material which the State had against the fourth appellant at the time
of the bail application was not sufficient to justify putting him on trial at all. Indeed, to minimise the danger of mob action
against the fourth appellant, the State should perhaps consider withdrawing the J
1996 (1) SACR p239
STEGMANN J
A charge against him, unless of course it has more information than has yet been disclosed.
In my judgment the magistrate ought to have been satisfied in terms of s 60(11) that the interests of justice did not require
the detention of the fourth appellant in custody. Moreover I am satisfied in terms of s 65(4) that the decision of the
magistrate B relating to the fourth appellant was wrong.
ORDER
The order which I would propose is:
C (1) that the appeals by first, second and third appellants should be dismissed; and
(2) that the appeal by the fourth appellant should be upheld, and that we should hear counsel further on the terms on which the
fourth appellant should be released.
D Leveson J: I agree. It is ordered accordingly with respect to the bail for the fourth accused.
Appellant's Attorneys: Botha, Du Plessis & Kruger.

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