When a person has been arrested with or without a warrant in terms of s 50(1)(a) of the Criminal Procedure Act 51 of 1977, they shall be informed of their right to apply and be released on bail or be informed their further detention in terms of s 50(1)(b) and s 50(6)(a) respectively. In the event that somebody has been arrested and the case brought against them is of a more serious nature, they might fall under s 60(11)(a) of the Criminal Procedures Act, which provides that: ‘Notwithstanding any provision of this Act, where an accused is charged with an offence –

(a) referred to in schedule 6, the court shall order that the 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 permits his or her release.’

How the courts have dealt with the ‘exceptional circumstances’ requirement
In S v Jonas and Others 1998 (2) SACR 677 (SE) it was held that the term ‘exceptional circumstances’ in a schedule 6 bail application are not defined. No direct causes were attached to what constitutes ‘exceptional circumstances’. In Mvambi v S (GJ) (unreported case no A113/2021, 4-2-2022) (Malangeni AJ) at paras 19, 20 and 22, the court held that the burden is on the appellant in a bail application to provide ‘that exceptional circumstances exist which in the interest of justice permit his [or her] release’. The court held that normal or ordinary circumstances do not amount to exceptional circumstances. The court in Mvambi referred to Jonas that an urgent serious medical condition and a cast-iron alibi can be considered exceptional circumstances. In Nhlapo v S (GP) (unreported case no A07/2023, 17-2-2023) (Ally AJ) at para 5, the court referred to exceptional circumstances as, ‘more than what can be described as the run-of-the-mill bail applications.’ The court in Nhlapo held that the appellant ‘must present cogent evidence’ that will be able to ‘stand up to scrutiny’ in order to convince the court on a ‘preponderance of probabilities’ that the appellant is a candidate for bail.

Result of not challenging the exceptional circumstances advanced by the appellant
In Fourie v S (GP) (unreported case no A107/2020, 8-6-2020) (Rabie J), the appellant was charged with nine counts, among others – robbery with aggravating circumstances; attempted murder; and malicious injury to property to name but a few. The charges against the appellant fell under s 60(11)(a). The burden was on the appellant to advance exceptional circumstances in order to discharge the burden placed on him in terms s 60(11)(a). The charges emanated from a cash in transit heist where the armoured vehicle was physically forced off the road. Shots were fired at the armoured vehicle while being at the side of the road. The occupants inside the armoured vehicle were forced to open it under threat that the robbers would use explosives to gain entry if they did not comply. It was submitted by the defence that the matter should be dealt with as a matter falling under schedule 5. They argued that the appellant was not physically involved in the robbery. The court rejected the defence’s contention and stated that if the allegations are true, the appellant acted in concert with the perpetrators and his intention was to the accomplish the desired outcome and as such he should face the same consequences. The court proceeded with the bail application as a schedule 6 offence. It was submitted by the state that the appellant was an employee of SBV as the Head of Logistics. The state alleged that the appellant manipulated the route taken by the occupants of the vehicle the day of the robbery in order to execute the robbery. It was found that the appellant did not have the mandate to change routes. The appellant submitted that he would stand his trial and that he had no relatives abroad. The state did not place anything before court in opposing the application. The state did not do anything to rebut the appellant’s denial that he did not commit or was involved in this crime. The court held that: ‘It would appear that the state had adopted this line of approach on the assumption that the appellant had all to do in order to succeed with his application for bail.’ The court in this matter found in favour of the appellant after proving exceptional circumstances, the court found that the version of the appellant stood unchallenged by the state.

When is the state required to challenge and rebut the exceptional circumstances advanced by the defence?
In Maponyane v S (NWM) (unreported case no CAB 07/2022, 2-9-2022) (Petersen J), the accused were charged with attempted murder, kidnapping, robbery, pointing of firearm, possession of a firearm and possession of ammunition. The court at para 8 concluded that the appellant relied predominantly on his personal circumstances and that he believed the state’s case was weak. In his affidavit the appellant stating that: ‘The learned magistrate erred in failing to attach the necessary weight to the personal circumstances of the appellant.’ The appellant adduced evidence by way of affidavit, that he is a father of three. His continued incarceration makes it difficult to support his children financially. He stated that he is employed at his father’s place of business and that his father is a sick elderly man. His continued incarceration placed a strain on the family business. The investigator in this matter testified that one of the mothers confirmed that she had two children by the appellant, but that she had not received maintenance money for more than a year from the appellant. It was also pointed out that the appellant’s father was in the court the day the bail application was heard and that he was present at every postponement prior to that day. The court dismissed the version of the appellant on the bases that every assertion made by the appellant was rebutted by the state. The court in dismissing the appellant’s application stated that: ‘The appellant against the presumption of innocence regularly finds himself in conflict with the law, being released on bail on very serious charges and being arrested while on bail. That, in itself, undermines the proper functioning of the bail system and contributes to bringing the administration of justice into disrepute in the eyes of society.’

In S v Mathebula 2010 (1) SACR 55 (SCA) at para 12, the court held that: ‘Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing there is no call on the state to rebut his evidence to that effect.’ The difference in how the state opted to apply itself in the Maponyane case as opposed to the Fourie case is evident in the outcome of both cases. The proactive approach by the investigator in the Maponyane case, by bringing the relevant information to the attention of the court, to place the court in a position to determine that exceptional circumstance did not exist.

Unintentional consequences of a schedule 6 bail application
In many schedule 6 offences, one finds that the investigation has been dragged on for too long and the state requests a remand for the investigations to be completed. It is in the defence’s discretion to request that the matter be struck from the roll to ‘give the state ample time to conclude the investigation’. Should the matter be struck from the roll, how do you secure the attendance of the accused before court when the investigation is completed? Does the state opt for a summons? Section 60(11)(a) states that ‘the court shall order that the accused be detained in custody.’ This is a mandatory provision, and the detention of the accused is the subject of this provision, until he is dealt with in terms of the law. The provision indicates that his detention is to be secured first and his detention shall be by way of a court order. This indicates that his detention shall be by way of warrant of arrest. In order to properly understand the provision, the case of S v Hewu and Others 2017 (2) SACR 67 (ECG), might be of assistance. In the Hewu case, the postponements were numerous and because of that the magistrate struck the matter from the roll. The appellant was arrested with a J50 warrant of arrest that same day and was brought before a different magistrate the next day. The matter was struck of the roll for a second time in as many days. On appeal, the judge requested submissions form the offices of the National Director of Public Prosecutions (NDPP) in Port Elizabeth and Grahamstown. The Port Elizabeth offices of the NDPP submitted that s 60(11)(a) ‘makes no distinction between accused persons who appear for the first time’ and those released on bail, there attendance should be secured by warrant of arrest. By issuing a summons, it is contrary to the intention of the provision. The Grahamstown offices of the NDPP submitted that the magistrate should have held a s 342A inquiry in order to determine what caused the delay in the finalisation of the investigations and then should have applied its mind based on the outcome of the inquiry. The court in Hewu stated that each case should be dealt with on its own merits but concluded that in the present case the court should have held a s 342A inquiry in order to ascertain what caused the delays. The court held at para 23 that: ‘Section 60(11) of the Act does not constitute an absolute bar to a court’s refusal to postponement and a decision to strike it from the roll in terms of s 342A(3)(a).’ The court also held that: ‘If it later transpires that the trial can be proceeded with and be completed soon, the re-arrest of the accused could be justified.’ The court in Hewu was willing to accept both submissions made by the different NDPP’s offices, but the method to be followed will be indicative of the case before court.

In S v Mabena and Another [2007] 2 All SA 137 (SCA) at para 6, the Supreme Court of Appeal confirmed that the ‘potential factors for and against the grant of bail’, listed in the Act, s 60(4), are no less relevant than what they are in a schedule 6 bail application. In almost every bail hearing the appellant recites the provisions of s 60(4) and assert that the state’s case against them is weak. On the former assertion the court in Mathebula at para 15 held that: ‘Parroting the terms of ss (4) of s 60 … does not establish any of those grounds, without the addition of facts that add weight to his ipse dixit.’ On the latter assertion the court in Mathebula at para 12 stated that, ‘he [the appellant] must prove on a balance of probability that he will be acquitted of the charge.’

Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.

This article was first published in De Rebus in 2023 (July) DR 10.