W.F.J.V.W and Others v S (CA&R 15/2010) [2010] ZAECPEHC 85 (23 July 2010)

Parties

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail by Magistrate

Legal Issues

1. 1 Whether the magistrate erred in finding that the appellants were charged with a Schedule 6 offence, thereby misapplying the onus of proof for bail.
2. 2 Whether the charge sheet and evidence established jurisdictional facts to trigger the reverse onus under section 60(11) of the Criminal Procedure Act.
3. 3 Whether the refusal of bail to the Second and Third Appellants was justified on the evidence and applicable law.

Ratio Decidendi

The court held that the magistrate erred in applying Schedule 6 to all appellants without properly considering the charge sheet and evidence. The charge sheet did not specify offences listed in Schedule 5 or 6, and the evidence established that only the First Appellant faced Schedule 6 offences where penetration was an element and Schedule 5 offences for sexual assault involving children under 12. The Second Appellant's offences did not resort under Schedule 5 or 6, and the onus remained on the State to prove that the interests of justice did not permit her release. The evidence against the Second Appellant was speculative and did not establish the likelihood of risks justifying refusal...

Court Disposition

Appeal dismissed for First Appellant; appeal upheld for Second Appellant; Third Appellant released on own recognizance.

Orders

• The appeal in respect of the First Appellant is dismissed.
• The appeal in respect of the Second Appellant is upheld and the order of the magistrate refusing to admit her to bail is set aside.