S v MATHONSI 2016 (1) SACR 417 (GP)


Bail — Application for — Duty of court hearing application — Second application based on new evidence — State and accused’s attorney merely addressing court and not presenting evidence — Procedure flawed — Duty of court to guide parties on how proceedings should unfold.


The appellant appealed against the refusal by a magistrate to grant him bail pending his trial on a charge of robbery with aggravating circumstances. It appeared that two separate bail applications were made. The second one was based on new facts, namely that a further charge pending against the appellant had been withdrawn, and, secondly, that his brother had passed away, requiring him to attend to certain rituals. No evidence was led at this second application and both the appellant’s attorney and prosecution merely addressed the court from the bar.

Held, that the procedure followed in the second bail application was flawed. It was the duty of the court, in the interests of justice, to guide the parties as to how the proceedings should unfold. The court did not take a sufficiently active role in the proceedings during the application.

Held, further, that there was in fact no second bail application because of the procedure used. In the circumstances, the court was unable to weigh the interests of justice against the appellant’s right to personal freedom, and in particular the prejudice he was likely to suffer, if he were to be further detained in custody.

Held, further, that, in the peculiar and unprecedented facts of the matter, it was the duty of the court on appeal to step into the breach. The appeal was accordingly upheld and the appellant released on bail.


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