Povlsen and Another v S (A594/08) [2009] ZAWCHC 11 (18 February 2009)

Povlsen and Another v S (A594/08) [2009] ZAWCHC 11 (18 February 2009)

The court found that the only new fact presented was the State's decision not to call the appellants' minor children as witnesses, which removed the risk of influencing their testimony. However, the court held that this fact was insufficient to outweigh the strength of the prima facie case against the appellants, the risk of flight due to their lack of ties to South Africa and foreign citizenship, and the risk of interference with witnesses and evidence. The interests of the children, while important, did not override these public interest considerations. The court assumed in favour of the appellants that the offence fell under Schedule 5, applying the lower threshold, but concluded that...

Citation
[2009] ZAWCHC 11
Parties
Appellant: Maria Povlsen; Appellant: Stella Ssengendo; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 February 2009
Case Number
A594/08
Procedural Posture
Bail Appeal / Appeal Against Refusal of Bail by Magistrate; Second Bail Appeal
Outcome
Appeal dismissed; bail refused.
Judges
D R Mitchell
Legal Topics
Bail Application, Flight Risk, Prima Facie Case, Interests of Children, Schedule 5 Offence, Interference With Evidence
Criminal Law Civil Procedure Bail Application Flight Risk Prima Facie Case Interests of Children Schedule 5 Offence Interference With Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Maria Povlsen

Appellant

Stella Ssengendo

Appellant

The State

Respondent

Procedural Posture

Bail Appeal / Appeal Against Refusal of Bail by Magistrate; Second Bail Appeal

Legal Issues

  1. 1 Whether new facts justify granting bail to the appellants pending trial.
  2. 2 Whether the interests of justice permit the release of the appellants on bail.
  3. 3 Whether the offence falls under Schedule 5 or Schedule 6 of the Criminal Procedure Act.

Ratio Decidendi

The court found that the only new fact presented was the State's decision not to call the appellants' minor children as witnesses, which removed the risk of influencing their testimony. However, the court held that this fact was insufficient to outweigh the strength of the prima facie case against the appellants, the risk of flight due to their lack of ties to South Africa and foreign citizenship, and the risk of interference with witnesses and evidence. The interests of the children, while important, did not override these public interest considerations. The court assumed in favour of the appellants that the offence fell under Schedule 5, applying the lower threshold, but concluded that...

Court Disposition

Appeal dismissed; bail refused.

Orders

  • The appeal against the refusal of bail is dismissed.
  • The appellants are to remain in custody pending trial.