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By Morganambal Padavattan

Where an accused has allegedly committed an offence referred to in sch 5 of the Criminal Procedure Act 51 of 1977 (the CPA) while they were on bail for an offence referred to in sch 5 of the CPA, that accused person will have to apply for bail in terms of s 60(11)(a) of the CPA. Similarly, where an accused has allegedly committed an offence referred to in sch 1 of the CPA while they were on bail for an offence referred to in sch 1 of the CPA, such an accused would have to apply for bail in terms of s 60(11)(b) of the CPA.

In the matter of S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC), the Constitutional Court (CC), among others, declared the provisions of s 60(11)(a) and 60(11)(b) of the CPA, constitutional. The CC in Schietekat was never called on to consider any of these specific provisions listed in sch 5 and sch 6 of the CPA. This article concerns the proper interpretation to be given to the word ‘offence’ in the phrase ‘was released on bail in respect of an offence’ referred to in both sch 5 and sch 1 of the CPA. The article also contends that the proper interpretation to be given to that word is that the offence for which an accused was on bail must be an offence in respect of which there is a reasonable prospect of conviction and not an offence where, on a balance of probabilities, there is a likelihood that an accused will be acquitted.

Where an accused person does not adduce evidence, which establishes on a balance of probabilities that the accused will in all likelihood be acquitted, a prosecutor can rest easy in the knowledge that there is no duty on the state to adduce any evidence concerning the strength of the state’s case (see in this regard S v Mathebula 2010 (1) SACR 55 (SCA)). Where an accused relies on the fact that the state’s case against them is weak, and that bail should be granted as a result thereof, such an accused is required to adduce evidence, which establishes on a balance of probabilities that they will be acquitted (see Mathebula). Section 60(11)(a) and s 60(11)(b) of the CPA, respectively, complicates this rather easy task.

As pointed out earlier, where an accused person has allegedly committed an offence referred to in sch 5 of the CPA while they were on bail for an offence referred to in sch 5 of the CPA, that accused person will have to apply for bail in terms of s 60(11)(a) of the CPA. Schedule 5 of the CPA has a similar provision, which provides that where an accused has allegedly committed an offence referred to in sch 1 of the CPA while they were on bail for an offence referred to in sch 1 of the CPA, such an accused would have to apply for bail in terms of s 60(11)(b) of the CPA.

In both these instances, the mere fact that an accused was released on bail for an offence referred to in sch 5 or sch 1 is the fact which triggers the application of s 60(11)(a) of the CPA. This provides that an accused shall be detained in custody unless they adduce evidence, which satisfies the court that ‘exceptional circumstances’ exist and will permit their release from custody. (As to the meaning of ‘exceptional circumstances’ and the constitutionality thereof, see Schietekat at paras 58 to 80).

The applicability of s 60(11)(b) of the CPA, provides that the court shall order that the accused be detained in custody unless the accused adduces evidence that satisfies the court that the ‘interest of justice’ permits their release from custody. (As to the meaning of the phrase ‘interest of justice’ and the constitutionality thereof, see Schietekat at paras 47 to 50 and para 101).

When bail is granted on the basis that the accused has adduced evidence, which establishes on balance of probabilities that they will be acquitted for the offence that – for purposes of this article – is an offence referred to in either sch 5 or sch 1 of the CPA (and the accused is subsequently charged for having committed an offence referred to in either sch 5 or sch 1 of the CPA) the fact that the accused will be acquitted for the offence for which they had been granted bail is or appears, at face value, to be irrelevant. The purpose of these provisions in sch 5 and sch 6 of the CPA, alluded to above, and what it is aimed at, is the refusal of bail where it is established that an accused has the propensity to commit offences referred to in either sch 1 or sch 5 of the CPA, as the case may be (see in this regard S v Rudolph 2010 (1) SACR 262 (SCA) where the propensity to commit violence was a factor taken into account in the refusal of bail).

Where there is a likelihood that an accused will, if released on bail, among others, commits an offence referred to in sch 1 of the CPA, the ‘interests of justice’ does not permit the release of an accused on bail and in those circumstances and it is very likely that a presiding officer will refuse bail considering the provisions of s 60(4)(a) of the CPA. It provides that the interest of justice does not permit the accused to be released on bail where there is a likelihood that the accused, if released on bail, will commit an offence referred to in sch 1 of the CPA. The same would apply, I submit, where there is a likelihood that an accused will commit an offence referred to in sch 5 of the CPA were they to be released on bail. In the scenario postulated by this article the likelihood that an accused has the propensity to commit either an offence referred to in sch 1 or sch 5 of the CPA will be established by the fact that the accused was granted bail for an offence referred to in either sch 1 or sch 5 of the CPA, as the case may be.

The legislature could have never contemplated that there could be a scenario where the offence referred to in sch 1 or sch 5 of the CPA, as the case may be, and for which the accused was on bail could be an offence for which the accused will be acquitted or would, in all probability, be acquitted or in one respect of which there is no reasonable prospect of conviction. The reason for this contention is that a prosecutor may only charge an accused person where the prosecutor concerned has reasonable and probable cause to believe that the accused is guilty of an offence (see Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) para 28 to 31). There must be a reasonable prospect of conviction, otherwise a prosecution should not be commenced or continued (see S v Doorewaard and Another 2021 (1) SACR 235 (SCA), were Ponnan JA at para 83 cites with approval DWM Broughton ‘The South African prosecutor in the face of adverse pre-trial publicity’ 2020 (23) PER/PELJ 1 at 12 to 13).

The offence concerned must be one in respect of which there is a reasonable prospect of conviction and not one which will in all probability result in an acquittal. Such an interpretation is one which accords with s 39(2) of the Constitution, in that it promotes an interpretation of sch 5 and sch 6 of the CPA which promotes the spirit, purport and objects of the Bill of Rights and is also an interpretation which does not lead to absurdity (as to the proper method of interpretation see in this regard Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) at para 28; see also Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)).

An interpretation of the word ‘offence’ in the phrase ‘was released on bail in respect of an offence’ in sch 5 and sch 6 of the CPA, as alluded to above, as an offence in respect of which the accused will in all probability be acquitted would result in an interpretation, which limits s 12(1)(a) of the Constitution which provides that ‘everyone has the right to freedom and security of the person, which includes the right –

(a) not to be deprived of freedom arbitrarily or without just cause’.

In the same vein, an interpretation of the word ‘offence’ in the phrase ‘was released on bail in respect of an offence’ referred to in sch 5 or sch 6 of the CPA holds that the word ‘offence’ can be one in respect of which there is no reasonable prospect of conviction or that evidence, which establishes that there is no reasonable prospect of conviction is irrelevant, such an interpretation will contravene s 12(1)(a) of the Constitution. This will amount to an arbitrary deprivation of the right to freedom or a deprivation of the right to freedom without just cause, particularly where bail is refused on the basis that the accused has the propensity to commit an offence referred to in either sch 1 or sch 5 of the CPA. These are all cogent reasons why the word ‘offence’ in the phrase ‘was released on bail in respect of an offence’ referred to in sch 5 and sch 6 of the CPA must be interpreted to mean an offence in respect of which there is a reasonable prospect of conviction and not one in respect of which, on a balance of probabilities, an accused will likely be acquitted.

While bail proceedings are not primarily concerned with the question of guilt or innocence (see Schietekat at para 11), criminal proceedings against an accused in terms of the CPA must start from the premise that there is at least a reasonable prospect of conviction in respect of an offence for which an accused is charged, (see Doorewaard), and not an offence in respect of which, on a balance of probabilities, there is a likelihood that the accused will be acquitted. Consequently, any court hearing a bail application for the offence which was allegedly committed while an accused was released on bail for an offence referred to in either sch 1 or sch 5 of the CPA would be duty bound to consider evidence from the applicant. This will establish whether the offence for which they were granted bail was one in respect of which the court, who heard the first bail application and for which bail was granted, found that the accused will or would in all probability be acquitted or that there was no reasonable prospect of conviction for purposes of establishing whether s 60(11)(a) or s 60(11)(b) of the CPA, as the case may be, finds application at all. A failure to do so by the presiding officer could lead to an arbitrary deprivation of freedom and, therefore, result in prejudicing the accused.

Practitioners will be well advised to ascertain the basis upon which an accused was previously granted bail as this may determine whether an application for bail is one in terms of sch 1, sch 5 or sch 6 of the CPA.

Morganambal Padavattan LLB LLM (Unisa) LLM (Corporate Law) is a lecturer at the University of Fort Hare in East London.

This article was first published in De Rebus in 2022 (July) DR 20.