CRIMINAL PROCEDURE – BAIL – APPLICATION ON NEW FACTS BROUGHT BY WAY OF AFFIDAVIT – THE TWO-LEGGED TEST TO BE APPLIED DISCUSSED

CRIMINAL PROCEDURE – BAIL – APPLICATION ON NEW FACTS BROUGHT BY WAY OF AFFIDAVIT – THE TWO-LEGGED TEST TO BE APPLIED DISCUSSED

 

Initially the two applicants unsuccessfully applied for bail in separate bail applications in the Outapi Magistrate’s court. These applications were heard by the same Magistrate. The charges at the time against the two appellants and their six co-accused were Count 1- Contravening Section 26(1) of the Nature Conservation Ordinance 4 of 1975: Hunting of specially protected game; Count 2- Contravening section 4(1)(a) of the Controlled Wildlife Products and Trade Act 9 of 2008: Possession of 2 pairs of rhino horns; Count 3- Contravening section 50(1) of the Nature Conservation Ordinance 4 of 1975: Removal of game found dead and; Count 4- contravening section 2 of the Arms and Ammunition Act 7 of 1996: Possession of a firearm without a license.

 

Several grounds for opposing bail were listed by the State however the court a quo refused bail for both the applicants on the basis of the seriousness of the offences, the propensity of the applicants to commit similar offences and the interest of public and administration of justice. The applicants did not appeal the Magistrate’s refusal of bail, hence the findings of that ruling stand. Their four co-accused were granted bail and the matter was transferred to the High Court for trial.

 

The applicants brought bail applications on new facts by way of sworn affidavits where after they were cross-examined by the State. A supporting sworn affidavit by the mother of the second applicant was also submitted. The respondent presented viva voce evidence of the investigating officer, the maternal grandmother to first applicant’s child and a family member of the second applicant.

 

The new facts presented by the first applicant were that his grandmother who was caring for his child, passed on since the initial bail and he is the only one who can take care of the child; that investigations were completed, and that the Prosecutor-General has decided that the matter be tried in the High Court and therefor there cannot be a fear that the applicant will interfere with the investigations. Furthermore, that the concluded investigations have not uncovered any evidence to link the first applicant to the offences.

 

The second applicant presented ‘new facts’ that his uncle passed away resulting in the business ventures of the said uncle not being taken care of and thus resulting in financial suffering of the family; that investigations were now complete, and that he was since acquitted on one of the four pending cases he had during the initial bail application.

 

KESSLAU AJ deal with the application and held that:

 

1. That once a bail application is heard and concluded, there can be no new bail application on the same facts unless new facts exist.
2. Held further that new facts are facts that were non-existent during the initial bail hearing.
3. Held also that when faced with an application for bail on new facts, a two-legged test applies consisting of firstly asking the question if these so-called new facts are indeed new and secondly, if it is indeed new facts, do they warrant/allow for the release of the applicant on bail.
4. Held finally: that in this matter new facts did not qualify as new having been dealt with in the court a quo, alternatively were not sufficient to warrant the release of both applicants on bail.

 

S v Bumes (CC 1 2020) [2022] NAHCNLD 123 (18 November 2022)