CRIMINAL LAW – BAIL APPEAL – PRINCIPLES AND PROCEDURE APPLICABLE TO BAIL DISCUSSED

CRIMINAL LAW – BAIL APPEAL – PRINCIPLES AND PROCEDURE APPLICABLE TO BAIL DISCUSSED

Whereas the appeal against the judgment of the High Court succeeded and its order granting the respondent bail set aside, SMUTS JA (MAINGA JA and HOFF JA concurring) discussed the principles applicable to bail as follows:

‘[46]      Chapter 9 of the CPA contains a detailed framework concerning applications for bail and the effect, rules, and consequences of bail. The general principles relating to bail and this chapter are succinctly summarised in… Nghipunya v Minister of Justice & others (HC-MD-CIV-MOT-GEN-2021/00343) [2022] NAHCMD 510 (14 October 2022) …that a court engages in a balancing exercise – by balancing the need to preserve the liberty of individuals presumed to be innocent until proven guilty and the interests of due administration of justice on the other hand. In this latter regard, relevant considerations are the seriousness of the offence and the strength of the State’s case as well as whether the accused will stand his or her trial, and the likelihood of interference with the investigation and witnesses and also the likelihood of similar offences being committed by the accused. By engaging in this balancing process, the courts exercise a discretion to decide whether a person in custody awaiting trial should or should not be released on bail pending that trial (S v Ramgobin & others 1985 (3) 587 (N) (Full Bench) at 588).

[47]        This balancing exercise boils down to an enquiry whether or not an applicant in the particular circumstances of each case is a worthy candidate for bail. The accused bears the onus to show that and would need to establish that and on a balance of probabilities.

[48]       Chapter 9 of the CPA does not prescribe the precise procedure to be followed…. The question of possible guilt at the stage of bail concerns a court only to the extent that it may bear upon where the interests of justice lie regarding bail (S v Dlamini; S v Dladla & others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) para 11).

[49]       The procedure in bail applications is less formal than a trial. The evidentiary material presented in a bail application need not comply with the rules governing the admissibility of evidence. The State is not obliged to prove its case against an accused in bail proceedings but would need to demonstrate through credible evidence the strength or apparent strength of its case with reference to the evidence in its possession in the form of witness statements and documentary evidence.  This evidence is usually given through the investigating officer.

The introduction of s 61

[50]        Section 61, as it was previously worded at the adoption of the Constitution… was plainly not compatible with the Constitution… The legislature thereafter passed Act 5 of 1991 repealing that provision and introduced s 61 in its current formulation.

[51]         Section 61 essentially authorises the court to decline bail in instances where a court considers that the interests of the public or the administration of justice justify the refusal of bail. The purpose of its introduction was thus explained at the time by the High Court in S v Du Plessis & another 1992 NR 74 (HC) 82F-H and 83B-E:

‘Act 5 of 1991 must be seen as an expression of the concern of the Legislature at the very serious escalation of crime and the similar escalation of accused persons absconding before or during the trial when charged with serious crimes or offences. The amending legislation was obviously enacted to combat this phenomenon by giving the Court wider powers and additional grounds for refusing bail in the case of the serious crimes and offences listed in the new part (IV) of the Second Schedule of the Criminal Procedure Act 51 of 1977. At the same time, the substitution of the new s 61 for the previous section took away the power of the Attorney-General and since independence, the Prosecutor-General, to prevent the Court from considering bail.

. . .

It is furthermore clear from the amendment that the Legislature intended to restore the discretion to grant bail to the Courts. But in this way the Legislature also placed an additional responsibility on the Courts to consider the grounds on which the Prosecutor-General could prevent bail, as grounds on which the Court can now refuse bail, under its wider powers to refuse on the grounds that it is not in the interest of the public and/or not in the interest of the administration of justice.

The amending legislation has also in s 61 extended the list of crimes and offences significantly where the Court can refuse bail on the grounds of public interest and interest of the administration of justice, compared to the list of crimes or offences where the Prosecutor-General could prevent bail under s 61 as it stood before the substitution of a new s 61.

The fact that the Court’s additional power to refuse is stated in wider terms indicates that the Court, when considering public interest, is not restricted to the limited form of public interest on which the Prosecutor-General could rely in the substituted s 61 as the second ground, viz the ground that the release is likely to “constitute a threat to the safety of the public or the maintenance of the public order”.

The latter ground is surely one of the possible examples of public interest on the ground of which bail can be refused by the Court, but it is not the only one.’

[52]        … Section 61 is to be viewed in its legislative context, thus expanding the range of offences in respect of which the Prosecutor-General could previously effectively deny bail and thereby substitute the considerations of public safety and the maintenance of law and order with the broader concepts of the ‘interest of the public’ and the ‘administration of justice’. To seek to confine s 61 to cases involving violent crime and public safety is thus contrary not only to the offences expressly included within its ambit but also fails to consider the legislative history and the purpose of its introduction, affording the court wider powers to refuse bail in the context of escalating crime.

[53]        The court in Du Plessis correctly found that the inclusion of theft where the value exceeds N$600 thus widened the ambit of the Prosecutor-General’s pre-independence power to exclude bail in offences affecting public safety to matters involving economic crime and the devastating impact such crime can have upon the economy of the country and thus adversely affect the interest of the public. The court in Du Plessis referred to economic impact of economic offences upon the state as ‘economic sabotage’. This approach was trenchantly followed by the full bench in Nghipunya v State (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020) para 44 (Nghipunya I):

‘The days of distinguishing between the seriousness of monetary crimes and violent crimes can no longer be seen to be different in bail applications. Whether the crimes involve public funds or a physical attack on a member of society, if the circumstances permit, the seriousness thereof must be taken into account when considering bail. In this matter, the misappropriation of public funds affects every individual of the Namibian public and needs to be seen for the detestable crime that it is. This together with the factors outlined above are essentially enough to arouse a court to the view that the administration of justice does not merit the release on bail of an applicant under these circumstances.’

[54]        Whilst the concept of the interest of the public is wide and difficult to define, it is clear that it embraces more than considerations of public safety as contended by counsel for the respondent, given the express inclusion of economic crimes within its ambit and the manner in which the provision has been interpreted by the courts since its introduction, given the statutory purpose behind the provision.

Test on appeal

[55]        … one need look no further than the terms of s 65(4) of the CPA itself as to the scope and ambit of an appeal against a decision on bail and how that provision has been interpreted, rather than consider the nature of an appeal against the exercise of discretion in other contexts.

[56]        Section 65(4) reads:

‘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.’

[57]        In construing s 65(4), the High Court has over the years accepted the approach in S v Barber 1979 (4) SA 218 (D) 220 dealing with the identical wording of that provision in South Africa:

‘It is well known that the powers of this court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that, no matter what this Court’s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.’

[58]        This approach was correctly followed by Miller, AJ in the respondent’s bail appeal from the magistrate’s court and had also been consistently followed by our courts before that.

[59]        It follows that the powers of this court are limited in the sense of having to be persuaded that Oosthuizen, J exercised his discretion wrongly before upsetting that decision and replaced it with the order which should have been given.’

S v Gustavo (SA 58-2022) [2022] NASC (2 December 2022) – Principles and Procedure of bail discussed