CRIMINAL LAW – APPEAL AGAINST REFUSAL BY MAGISTRATE TO ADMIT APPELLANTS TO BAIL

CRIMINAL LAW – APPEAL AGAINST REFUSAL BY MAGISTRATE TO ADMIT APPELLANTS TO BAIL

The facts of this matter were extensively covered by the media. The High court upheld the appeal, and held that:

1. The release of the other six co-accused facing the same charges as the appellants on warning was a material factor which required further scrutiny. The accused persons ought to have been treated the same, except where compelling circumstances existed which required a different approach.
2. There was no evidence that remotely explained the differentiation made by the police between the appellants and their co-accused when releasing the latter on warning.
3. There is nothing in the record that remotely explains or justifies the inconsistent handling by the police of the appellants’ case, opposed to that of their co-accused.
4. That while the true reasons were not explored, the only reasonable conclusion to reach is that the disparity was because both appellants were already out on bail on other cases.
5. Failure on the part of the magistrate to obtain material information relevant to the outcome of bail proceedings, constituted a misdirection. Not every misdirection committed leads to the entire proceedings being vitiated, as the effect thereof must be decided against the evidence as a whole.
6. When deciding the risk of further offences being committed, bail may be refused if there is a real likelihood that the appellants will commit further offences while out on bail. No evidence was placed before the court a quo showing that, objectively viewed, there exists a real likelihood of it happening. Neither does the fact that both appellants have pending cases against them for which they are on bail, per se, establish such likelihood.
7. The protest where the appellants’ arrest was the direct consequence of their actions on the day, was an isolated incident aimed at specific business owners and not the public at large; not to say that the rights of these persons are inferior to that of others.
8. The question as to the appellants absconding or interfering with the state witnesses or police investigation did not arise in the bail application. As to whether the appellants will commit further offences, court is satisfied that the evidence adduced did not establish that a real likelihood exists that the appellants will reoffend when out on bail.
9. In deciding whether their release would be prejudicial to the maintenance of law and order, and in particular towards certain members of society, court is convinced that any future conduct by the appellants being prejudicial to the maintenance of law and order, or public interest, could be countered by appropriate bail conditions.
10. The interest of the administration of justice does not require the continued detention of the appellants, pending the finalisation of their case. The court a quo’s decision when refusing bail in this matter is accordingly found to be wrong and falls to be set aside.

Amushelelo v S NAHCMD 22 August 2022