S v BRUINTJIES 2003 (2) SACR 575 (SCA) A

2003 (2) SACR p575

Citation2003 (2) SACR 575 (SCA)

Case No 676/2002

Court Supreme Court of Appeal

Judge Howie P, Heher JA and Shongwe AJA

Heard January 14, 2003

Judgment February 25, 2003

CounselC Verrier for the appellant.

D Greyling for the State.

Annotations Link to Case Annotations

[zFNz]Flynote : Sleutelwoorde

Bail - Pending appeal - Accused granted leave to appeal - Although s 60(11) of Criminal Procedure
Act 51 of 1977 deals with unconvicted persons, it must follow that person who has been found guilty
of Schedule 6 offence cannot claim benefit of lighter test.

Bail - Pending appeal - Accused C granted leave to appeal - Effect of - Mere fact that sentenced
person granted leave to appeal not constituting exceptional circumstance - Court must consider all
relevant factors and determine whether individually or cumulatively they warrant finding that
circumstances of exceptional nature exist which justify release - Prospect of success may be such
circumstance, particularly if conviction is demonstrably suspect - It may be insufficient to surmount
threshold if, D eg, there are other facts which persuade court that society will probably be
endangered by accused's release or there is clear evidence of intention to avoid grasp of law - Court
will also take into account increased risk of abscondment attaching to person who faces known
prospect of long sentence - If, upon overall assessment, court satisfied that circumstances
sufficiently out of E ordinary to be deemed exceptional established by accused and which,
consistent with interests of justice, warrant release, accused must be granted bail.

Bail - Application for - Factors to be taken into account - 'Exceptional circumstances' as

contemplated in s 60(11)(a) of Criminal Procedure Act 51 F of 1977 - Accused convicted and
sentenced - Accused applying for bail pending appeal - Accused having been released on bail prior to
conviction and sentence - Fact that accused sentenced meaning that by time of bail application
circumstances changed and there is need to place new facts before court during bail application in
order to establish required exceptional circumstances. G

[zHNz]Headnote : Kopnota

Although s 60(11) of the Criminal Procedure Act 51 of 1977 deals, on the face of it, with unconvicted
persons, it must follow that a person who has been found guilty of a Schedule 6 offence cannot
claim the benefit of a lighter test. (Paragraph [5] at 577b.) H

The mere fact that a sentenced person has been granted leave to appeal does not constitute an
exceptional circumstance. What is required is that the court consider all relevant factors and
determine whether individually or cumulatively they warrant a finding that circumstances of an
exceptional nature exist which justify her or his release. What is exceptional cannot be defined in
isolation from the relevant facts, save that the Legislature clearly had in mind circumstances which
I remove the applicant from the ordinary run and which serve at least to mitigate the serious
limitation of freedom which the Legislature has attached to the commission of a Schedule 6 offence.
The prospect of success may be such a circumstance, particularly if the conviction is demonstrably
suspect. It may, however, be insufficient to surmount the threshold if, for example, there are other
facts which persuade J

2003 (2) SACR p576

the court that society will probably be endangered by the appellant's A release or there is clear
evidence of an intention to avoid the grasp of the law. The court will also take into account the
increased risk of abscondment which may attach to a convicted person who faces the known
prospect of a long sentence. Such matters together with all other negative factors will be cast into
the scale with factors favourable to the accused. If, upon an overall assessment, the court is satisfied
B that circumstances sufficiently out of the ordinary to be deemed exceptional have been
established by the appellant and which, consistent with the interests of justice, warrant his release,
the appellant must be granted bail. (Paragraph [6] at 577e - i.)

The appellant had been convicted and sentenced by a High Court, which had also granted him leave
to appeal. Before his conviction he had been C released on bail. Subsequent to his conviction, his
bail had been cancelled. He did not testify at his bail application. The Court on appeal held that the
fact that he had been sentenced meant that by the time of the bail application his circumstances had
changed and he had needed to place new facts before the Court during his bail application in order
to establish the required exceptional circumstances. On the D evidence before the Court there
were no exceptional circumstances and the appeal was dismissed. (Paragraphs [8] and [11] at 578i - j
and 579b - c.)

[zCAz]Cases Considered

Annotations

Reported cases

R v Mthembu 1961 (3) SA 468 (D): applied

S v Yanta 2000 (1) SACR 237 (Tk): applied. E

[zCIz]Case Information

Appeal from a decision in the Cape High Court (Yekiso J). The order was made on 14 January 2003
and the reasons given on 25 February 2003. The facts appear from the reason for judgment.

C Verrier for the appellant. F

D Greyling for the State.

[zJDz]Judgment

Shongwe AJA:

[1] The appellant and other accused were convicted in the Cape High Court of one count of robbery
with aggravating circumstances and one count of unlawful possession of firearms. The appellant
received G sentences of 15 years and five years respectively. He applied for and was granted leave
to appeal to the Full Bench against conviction and sentence.

[2] Bail pending appeal was refused by the trial Judge on the ground that, given the length of the
sentence, it was not in the H interests of justice that he be released on bail. He appealed as of
right to this Court against that refusal. After hearing argument this Court issued an order dismissing
the appeal and intimated that reasons would be furnished later. The reasons are as follows.

[3] The robbery in question involved the use by one of the I appellant's co-accused of a firearm,
robbery of that nature being included in Schedule 6 to the Criminal Procedure Act 51 of 1977 (the
Act).

[4] Section 60 of the Act provides:

'(11) Notwithstanding any provision of this Act, where an accused is charged with an offence
referred to - J

2003 (2) SACR p577

SHONGWE AJA

(a) in Schedule 6, the court shall order that the A accused be detained in custody until
he or she is dealt with in accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her release. . . .'

[5] The section deals, on the face of it, with unconvicted B persons. However, it must follow that a
person who has been found guilty of a Schedule 6 offence cannot claim the benefit of a lighter test.
It was conceded that the mere fact that a sentenced person has been granted leave to appeal does
not automatically suspend the operation of his sentence, nor does it entitle him to bail as of right.
(See R v Mthembu 1961 (3) SA 468 (D).) C

[6] The main thrust of the appellant's counsel's submissions before us was that the grant of leave to
appeal on the merits presupposed the existence of a reasonable prospect of success in the appeal.
Such a prospect, said counsel, of itself constituted an exceptional circumstance within the meaning
of the section. If that were so, however, the great majority of persons facing charges D involving
Schedule 6 offences would have to be released on bail pending their trial without regard to other
important considerations, such as, for example, the public safety. The mere fact that the trial court
considers that the appellant has a reasonable prospect of succeeding on appeal does not of itself
amount to an exceptional circumstance. What E is required is that the court consider all relevant
factors and determine whether individually or cumulatively they warrant a finding that
circumstances of an exceptional nature exist which justify his or her release. What is exceptional
cannot be defined in isolation from the relevant facts, save to say that the Legislature clearly had in
F mind circumstances which remove the applicant from the ordinary run and which serve at least to
mitigate the serious limitation of freedom which the Legislature has attached to the commission of a
Schedule 6 offence. The prospect of success may be such a circumstance, particularly if the
conviction is demonstrably suspect. It may, however, be insufficient to surmount the threshold if, for
example, G there are other facts which persuade the court that society will probably be
endangered by the appellant's release or there is clear evidence of an intention to avoid the grasp of
the law. The court will also take into account the increased risk of abscondment which may attach to
a convicted person who faces the known prospect of a long sentence. Such matters, together with all
other negative factors, will H be cast into the scale with factors favourable to the accused, such as
stable home and work circumstances, strict adherence to bail conditions over a long period, a
previously clear record and so on. If, upon an overall assessment, the court is satisfied that
circumstances sufficiently out of the ordinary to be deemed exceptional have been I established
by the appellant and which, consistent with the interests of justice, warrant his release, the
appellant must be granted bail.

[7] Applying these principles to the present appeal produces the following input and conclusion: J

2003 (2) SACR p578

SHONGWE AJA

(a) The appellant attended Court punctiliously over A the long duration of his trial.

(b) He scrupulously observed his bail conditions.

(c) He made no attempt to abuse his continued possession of a passport.

(d) His home circumstances appear to be stable. He supports a wife and five children.
B

(e) He now confronts a sentence of 20 years in jail. He has at all times maintained his
innocence and does not accept the correctness of his conviction.

(f) The appellant failed to testify on his own behalf in C the trial and no attempt was
made by his counsel to have him testify at the bail application. There was thus no means by which
the Court a quo could asses the bona fides or reliability of the appellant save by the say-so of his
counsel.

(g) The prospects of success in the appeal, while by no means non-existent, cannot be
categorised as strong. It is true that D the trial Court relied on the evidence of three accomplices,
each of whom was subject to warranted criticism. There are, however, certain objective facts which
the Court on appeal will no doubt find interesting. These include:

(i) the already mentioned failure of the appellant to testify in rebuttal

of the State case; E

(ii) the uncontradicted evidence that the appellant was in direct contact
with accused 2, who was also convicted of the robbery, and the accomplices Fourie, Van Wyk and
Fritz on the day preceding the robbery; F

(iii) the uncontradicted evidence that shortly before the robbery was
carried out by an armed gang accused 5 transported accused 1, who was armed, and the appellant
to the scene; in a motor car belonging to the appellant; accused 1 and 5 were both convicted of the
robbery;

(iv) after the robbery the participants gathered at appellant's G house

where, inter alia, the stolen goods were transferred from one vehicle to another in the presence of
the appellant, a decision was taken to dispose of two vehicles and the appellant suggested that the
stolen goods be sold the following day. H

[8] Whether the sum of circumstantial evidence is sufficient (as the Court a quo found) to establish
the appellant's complicity in the planning of and participation in the robbery must be left to the
Court hearing the appeal. For purposes of this appeal it is not necessary to go beyond simply stating
the evidence. The fact that I the appellant had been sentenced meant that by the time of the bail
application his circumstances had changed and he needed to place new facts, if any existed, before
the Court during his bail application in order to establish the required exceptional circumstances.
(See S v Yanta 2000 (1) SACR 237 (Tk).) J

2003 (2) SACR p579

SHONGWE AJA

[9] Amongst other grounds of appeal the appellant submitted that A the Court a quo failed to hear
evidence or even afford him an opportunity to adduce evidence. This submission is not borne out by
the record.

[10] I consider that in a bail application pending appeal the Court ought to take into account all the
facts surrounding the case, including any new evidence, and treat the application as if it is hearing it
for the first time. B

[11] It is clear from the summary provided that not only are there no circumstances present which
can be described as exceptional but there is no balance in favour of the release of the appellant in
the interests of justice. The appellant failed to persuade us that the circumstances of his case should
be regarded as exceptional, or as mitigating in any degree the harsh consequences which the
Legislature C has linked to a charge of committing a Schedule 6 offence.

[12] As a result the appeal was dismissed.

Howie P and Heher AJA concurred. D