Terblanche v S (CA&R 05/2022) [2022] ZAECQBHC 36 (4 October 2022)

Terblanche v S (CA&R 05/2022) [2022] ZAECQBHC 36 (4 October 2022)

The court found that the magistrate erred in applying a restrictive dictionary definition of 'new facts' and failed to appreciate that evidence previously unavailable to the appellant, such as affidavits from individuals he believed to be state witnesses and electronic evidence retrieved from his cellphone, constituted new facts. The change in circumstances that made such evidence accessible after the first bail application is what qualifies them as new facts. The court held that the appellant should be afforded the opportunity to present this evidence in support of his renewed bail application. The matter was remitted to the magistrate to determine the bail application afresh, allowing...

Citation
[2022] ZAECQBHC 36
Parties
Appellant: Arnoldus Abraham Terblanche; Respondent: The State
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
4 October 2022
Case Number
CA&R 05/2022
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail on New Facts
Outcome
Appeal upheld; magistrate's decision set aside; matter remitted for urgent reconsideration of bail application on new facts.
Judges
M. S. Rugunanan, V. Noncembu
Legal Topics
Bail Application, New Facts, Criminal Procedure Act, Schedule 6 Offences, Exceptional Circumstances
Criminal Law Civil Procedure Bail Application New Facts Criminal Procedure Act Schedule 6 Offences Exceptional Circumstances

Case Brief

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Parties

Arnoldus Abraham Terblanche

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail on New Facts

Legal Issues

  1. 1 Whether the magistrate erred in refusing bail on the basis that the facts presented were not 'new facts'.
  2. 2 What constitutes 'new facts' for the purposes of a renewed bail application under the Criminal Procedure Act.
  3. 3 Whether the appellant should be permitted to adduce further evidence in support of bail.

Ratio Decidendi

The court found that the magistrate erred in applying a restrictive dictionary definition of 'new facts' and failed to appreciate that evidence previously unavailable to the appellant, such as affidavits from individuals he believed to be state witnesses and electronic evidence retrieved from his cellphone, constituted new facts. The change in circumstances that made such evidence accessible after the first bail application is what qualifies them as new facts. The court held that the appellant should be afforded the opportunity to present this evidence in support of his renewed bail application. The matter was remitted to the magistrate to determine the bail application afresh, allowing...

Court Disposition

Appeal upheld; magistrate's decision set aside; matter remitted for urgent reconsideration of bail application on new facts.

Orders

  • The matter is remitted to the magistrate or an alternate magistrate to urgently determine the appellant's bail application on new facts in accordance with section 60(11)(a) of the Criminal Procedure Act 51 of 1977 within seven days of the date of this judgment.
  • The appellant is to be afforded the opportunity to adduce evidence in support of his further bail application of 7 April 2022 in respect of the new facts and any further evidence he wishes to lead.