S v Sithole and Others (7032/11) [2011] ZAKZDHC 36; 2012 (1) SACR 586 (KZD) (19 August 2011)

S v Sithole and Others (7032/11) [2011] ZAKZDHC 36; 2012 (1) SACR 586 (KZD) (19 August 2011)

The court found that the appellants failed to discharge the onus of proving exceptional circumstances required for bail in Schedule 6 offences. The magistrate properly considered the seriousness of the offence, the circumstances of the robbery, and the strength of the State's case. The affidavit evidence presented by the appellants was insufficient, and none gave oral evidence. The State's failure to actively participate and present all relevant facts was criticized, but did not alter the outcome. The court held that the magistrate was correct in refusing bail, and the appeal was dismissed.

Citation
[2011] ZAKZDHC 36
Parties
Appellant: Sibusiso Sithole; Appellant: Cyril S Ngema; Appellant: Nkululeko Sithole; Respondent: The State
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
19 August 2011
Case Number
7032/11
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail
Outcome
Appeal dismissed; bail refused.
Judges
Steyn
Legal Topics
Bail Application, Exceptional Circumstances, Onus of Proof, Robbery With Aggravating Circumstances, Duties of Prosecutors
Criminal Law Civil Procedure Bail Application Exceptional Circumstances Onus of Proof Robbery With Aggravating Circumstances Duties of Prosecutors

Case Brief

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Parties

Sibusiso Sithole

Appellant

Cyril S Ngema

Appellant

Nkululeko Sithole

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail

Legal Issues

  1. 1 Whether the appellants discharged the onus of proving exceptional circumstances justifying release on bail under section 60(11) of the Criminal Procedure Act.
  2. 2 Whether the magistrate in the court a quo erred in refusing bail to the appellants.
  3. 3 Whether the State fulfilled its obligations to present all relevant evidence in the bail proceedings.

Ratio Decidendi

The court found that the appellants failed to discharge the onus of proving exceptional circumstances required for bail in Schedule 6 offences. The magistrate properly considered the seriousness of the offence, the circumstances of the robbery, and the strength of the State's case. The affidavit evidence presented by the appellants was insufficient, and none gave oral evidence. The State's failure to actively participate and present all relevant facts was criticized, but did not alter the outcome. The court held that the magistrate was correct in refusing bail, and the appeal was dismissed.

Court Disposition

Appeal dismissed; bail refused.

Orders

  • The appellants' appeal to be released on bail is dismissed.
  • The registrar is requested to forward a copy of this judgment to the Director of Public Prosecutions (KwaZulu-Natal) for consideration of the remarks made concerning the duties of prosecutors in conducting bail applications.