Tamang and Another v S (A91/2023) [2023] ZAGPJHC 1084 (28 September 2023)

Tamang and Another v S (A91/2023) [2023] ZAGPJHC 1084 (28 September 2023)

The appellants failed to discharge the onus of proving exceptional circumstances justifying release on bail for a schedule 6 offence. Their reliance on affidavit evidence, which could not be tested by cross-examination, weakened their case. The court found that the risk of flight was high due to their lack of ties...

Source-derived case information.

Citation
[2023] ZAGPJHC 1084
Parties
Appellant: Sujan Tamang; Appellant: Sanjog Limbu; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 September 2023
Case Number
A91/2023
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail
Outcome
Appeal dismissed; bail remains refused.
Judges
Dosio
Legal Topics
Bail Application, Exceptional Circumstances, Illegal Immigration, Robbery With Aggravating Circumstances, Onus of Proof, Immigration Act
Criminal Law Bail Application Exceptional Circumstances Illegal Immigration Robbery With Aggravating Circumstances Onus of Proof Immigration Act

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 7 Authorities cited 17 Party arguments 2
Sign in to unlock

Parties

Sujan Tamang

Appellant

Sanjog Limbu

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail

Legal Issues

  1. 1 Whether the appellants established exceptional circumstances justifying release on bail for a schedule 6 offence.
  2. 2 Whether the appellants' status as illegal immigrants precludes bail.
  3. 3 Whether the refusal of bail by the court a quo was wrong in law or fact.

Ratio Decidendi

The appellants failed to discharge the onus of proving exceptional circumstances justifying release on bail for a schedule 6 offence. Their reliance on affidavit evidence, which could not be tested by cross-examination, weakened their case. The court found that the risk of flight was high due to their lack of ties to South Africa, absence of substantial assets, and the likelihood of deportation upon conviction. The fact that the investigating officer did not oppose bail was not binding on the court, which is required to uphold the law and weigh the interests of justice. The appellants' illegal status and the strong prima facie case against them under the Immigration Act further militated...

Court Disposition

Appeal dismissed; bail remains refused.

Orders

  • The appeal of the appellants is dismissed.
  • The decision of the court a quo refusing bail is upheld.