Sithubeni v S (Bail Appeal) (A 84/21) [2021] ZAWCHC 283 (31 May 2021)

Sithubeni v S (Bail Appeal) (A 84/21) [2021] ZAWCHC 283 (31 May 2021)

The appellant failed to discharge the onus of proving exceptional circumstances permitting release on bail as required by section 60(11)(a) of the Criminal Procedure Act. The evidence presented by affidavit was less persuasive than oral evidence would have been, and the appellant omitted material facts, including a pending assault case. The personal circumstances advanced were commonplace and did not amount to exceptional circumstances. The concerns raised regarding Covid-19 prison conditions did not constitute exceptional circumstances, as they would apply to all awaiting trial prisoners. The magistrate's decision was not wrong, and the requirements of section 65(4) were not met....

Citation
[2021] ZAWCHC 283
Parties
Appellant: Lungisa Sithubeni; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 May 2021
Case Number
A84/21
Procedural Posture
Bail Appeal / Appeal Against Refusal of Bail by Magistrate
Outcome
The appeal against the refusal of bail is dismissed.
Judges
Nel
Legal Topics
Bail Application, Schedule 6 Offence, Exceptional Circumstances, Onus of Proof, Affidavit Evidence
Criminal Law Civil Procedure Bail Application Schedule 6 Offence Exceptional Circumstances Onus of Proof Affidavit Evidence

Case Brief

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Parties

Lungisa Sithubeni

Appellant

The State

Respondent

Procedural Posture

Bail Appeal / Appeal Against Refusal of Bail by Magistrate

Legal Issues

  1. 1 Whether the appellant discharged the onus of proving exceptional circumstances permitting release on bail under section 60(11)(a) of the Criminal Procedure Act.
  2. 2 Whether the magistrate's refusal of bail was wrong in law or fact.
  3. 3 Whether affidavit evidence is less persuasive than oral evidence in bail applications for Schedule 6 offences.

Ratio Decidendi

The appellant failed to discharge the onus of proving exceptional circumstances permitting release on bail as required by section 60(11)(a) of the Criminal Procedure Act. The evidence presented by affidavit was less persuasive than oral evidence would have been, and the appellant omitted material facts, including a pending assault case. The personal circumstances advanced were commonplace and did not amount to exceptional circumstances. The concerns raised regarding Covid-19 prison conditions did not constitute exceptional circumstances, as they would apply to all awaiting trial prisoners. The magistrate's decision was not wrong, and the requirements of section 65(4) were not met....

Court Disposition

The appeal against the refusal of bail is dismissed.

Orders

  • The appellant’s application for bail is dismissed.