De Faria v S (BA25/2024) [2024] ZALMPPHC 121; 2024 (2) SACR 640 (LP) (20 September 2024)

De Faria v S (BA25/2024) [2024] ZALMPPHC 121; 2024 (2) SACR 640 (LP) (20 September 2024)

The court found that the appellant's attorney committed a gross ethical breach and irregularity by consulting with the state witness (the appellant's wife) without the prosecutor's knowledge or consent, in violation of established practice and section 60(14) of the Criminal Procedure Act. The communication, regardless of being via email, constituted improper consultation and compromised the fairness of the bail proceedings. The affidavit obtained from the wife was irregularly procured and its use undermined the prosecution's right to a fair trial. The appeal against the first refusal of bail was struck from the roll as it was irregular to pursue both an appeal and a new bail application...

Citation
[2024] ZALMPPHC 121
Parties
Appellant: Rui Manuel De Faria; Respondent: The State
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
20 September 2024
Case Number
BA25/2024
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail and Application for Bail on New Facts
Outcome
The appeal against the first refusal of bail is struck from the roll; the bail proceedings on new facts are set aside and referred back for rehearing before another magistrate; the application to admit further evidence on appeal is dismissed.
Judges
G.C Muller
Legal Topics
Bail Application, Consultation With State Witness, Ethical Breach, Criminal Procedure Act, Fair Trial Rights
Criminal Law Civil Procedure Bail Application Consultation With State Witness Ethical Breach Criminal Procedure Act Fair Trial Rights

Case Brief

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Parties

Rui Manuel De Faria

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail and Application for Bail on New Facts

Legal Issues

  1. 1 Whether the appellant's legal representative committed a gross irregularity by consulting with a crucial state witness without the prosecutor's knowledge or consent.
  2. 2 Whether the affidavit obtained from the state witness (appellant's wife) in support of bail on new facts was irregularly procured and should be excluded.
  3. 3 Whether the appeal against the first refusal of bail and the subsequent application for bail on new facts can be entertained simultaneously.

Ratio Decidendi

The court found that the appellant's attorney committed a gross ethical breach and irregularity by consulting with the state witness (the appellant's wife) without the prosecutor's knowledge or consent, in violation of established practice and section 60(14) of the Criminal Procedure Act. The communication, regardless of being via email, constituted improper consultation and compromised the fairness of the bail proceedings. The affidavit obtained from the wife was irregularly procured and its use undermined the prosecution's right to a fair trial. The appeal against the first refusal of bail was struck from the roll as it was irregular to pursue both an appeal and a new bail application...

Court Disposition

The appeal against the first refusal of bail is struck from the roll; the bail proceedings on new facts are set aside and referred back for rehearing before another magistrate; the application to admit further evidence on appeal is dismissed.

Orders

  • The application to receive further evidence on appeal in terms of section 19(1)(b) of Act 10 of 2013 is dismissed.
  • The appeal against the order dated 4 April 2024 in Praktiseer Case no A291/2024 is struck from the roll.