CRIMINAL PROCEDURE – BAIL APPEAL AGAINST REFUSAL TO GRANT BAIL – FACTORS CONSIDERED; POWERS OF COURT OF APPEAL TO INTERFERE WITH DECISION OF COURT A QUO

CRIMINAL PROCEDURE – BAIL APPEAL AGAINST REFUSAL TO GRANT BAIL – FACTORS CONSIDERED; POWERS OF COURT OF APPEAL TO INTERFERE WITH DECISION OF COURT A QUO

The applicant unsuccessfully applied for bail in the Magistrate’s Court sitting at Gobabis where he was charged with rape of a girl under the age of 12 years, read with the provisions of the Combating of Domestic Violence Act 4 of 2003. The respondent opposed bail and called the investigating officer in support of its opposition.

In refusing bail, the court a quo considered that the state has proved a strong case against the appellant. The appellant in his defence, did not address the merits of the case apart from offering a mere denial to the charges proffered against him. Although the appellant is not obliged to tender evidence before the court incriminating himself, situations may arise that require of the appellant, to a certain degree, to place evidence before court in order to refute the allegations of the state like in the present matter.

After the court a quo considered the strength of the state case, the seriousness of the offence and the severe sentence that is likely to be imposed if convicted plus any other consideration of the relevant information placed before it correctly, it came to the conclusion that it was not in the interest of the public or administration of justice to release the appellant on bail. The court was of the opinion that the appellant has failed to discharge the onus on a balance of probabilities that he is a suitable candidate to be admitted to bail or that it was in the interest of the administration of justice for him to be released on bail.

On appeal, the Court of appeal was not convinced that the court a quo exercised its discretion wrongly. Therefore, there was no legal basis for it court to interfere with that courts’ discretion as permitted by section 65(4) of the Criminal Procedure Act.

As a result, the appeal was diminished.

Karigub v S NAHCMD 14 November 2022