Jacobus and Another v S (CA&R156/2016) [2016] ZAECGHC 65 (22 August 2016)

Jacobus and Another v S (CA&R156/2016) [2016] ZAECGHC 65 (22 August 2016)

The magistrate misdirected himself by relying on speculative opinions from the investigating officer without proven facts to establish the likelihood of absconding or interference with witnesses. The State failed to discharge the onus required for Schedule 5 bail applications, as neither a proper charge description nor a certificate from the attorney-general was provided. The arrangement between the parties, which placed an onus on the second appellant without the State first establishing the charge as Schedule 5, was impermissible and prejudicial. The evidence, including the State's concession that bail conditions could address its concerns, tipped the balance in favour of granting bail....

Citation
[2016] ZAECGHC 65
Parties
Appellant: Eldrid Jacobus; Appellant: Abraham (a.k.a André) Hoffman; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
22 August 2016
Case Number
CA&R 156/2016
Procedural Posture
Bail Appeal / Appeal Against Magistrate's Refusal of Bail
Outcome
Appeal upheld; magistrate's order refusing bail set aside; bail granted to both appellants subject to conditions.
Judges
Rugunanan
Legal Topics
Bail Application, Onus of Proof, Stock Theft, Schedule 5 Offences, Magistrate Discretion
Criminal Law Civil Procedure Bail Application Onus of Proof Stock Theft Schedule 5 Offences Magistrate Discretion

Case Brief

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Parties

Eldrid Jacobus

Appellant

Abraham (a.k.a André) Hoffman

Appellant

The State

Respondent

Procedural Posture

Bail Appeal / Appeal Against Magistrate's Refusal of Bail

Legal Issues

  1. 1 Whether the magistrate misdirected himself in refusing bail to the appellants.
  2. 2 Whether the State discharged the onus required for Schedule 5 bail applications.
  3. 3 Whether the appellants are likely to abscond or interfere with State witnesses if released on bail.

Ratio Decidendi

The magistrate misdirected himself by relying on speculative opinions from the investigating officer without proven facts to establish the likelihood of absconding or interference with witnesses. The State failed to discharge the onus required for Schedule 5 bail applications, as neither a proper charge description nor a certificate from the attorney-general was provided. The arrangement between the parties, which placed an onus on the second appellant without the State first establishing the charge as Schedule 5, was impermissible and prejudicial. The evidence, including the State's concession that bail conditions could address its concerns, tipped the balance in favour of granting bail....

Court Disposition

Appeal upheld; magistrate's order refusing bail set aside; bail granted to both appellants subject to conditions.

Orders

  • The appeal by both appellants succeeds and the magistrate's order refusing bail is set aside.
  • The first and second appellants are released on bail of R500.00 each, subject to specified conditions.