Weighing a schedule six offence
LAST week, the Randburg Circuit Court denied suspected terrorist Henry Okah bail on the grounds that the exceptional circumstances he presented did not justify him being granted bail.
Generally, bail must be granted should the court find it to be in the interest of justice. B ut for people accused of committing an offence under schedule six of the Criminal Procedure Act , an accused can be granted bail only if they show that exceptional circumstances exist .
Mr Okah's charges, which include one charge of detonating an explosive device , are schedule six offences. Other such offences include rape and robbery.
The court hearing such a bail application must be satisfied that the applicant has discharged their onus of proving exceptional circumstances exist .
The Criminal Procedure Act states that the refusal to grant bail shall be in the interests of justice where a number of grounds have been established.
These include whether it is likely that the accused, if released on bail, would endanger the safety of the public or whether the accused would attempt to evade their trial or influence or intimidate witnesses.
The a ct says the court shall decide the matter by weighing the interests of justice against the right of the accused to their personal freedom.
In the case of Mr Okah, the regional magistrate in November was not satisfied with the exceptional circumstances Mr Okah listed to justify his release on bail. Judge Philip Hattingh ruled that the onus was on Mr Okah to prove that there were exceptional circumstances which entitled him to bail.
In arguing for Mr Okah's release on bail last week, his advocate, Dumisa Ntsebeza SC, suggested that the description of exceptional circumstances had been "corrupted" by the judges in certain cases.
Mr Ntsebeza cited the granting of bail in the UK to Shrien Dewani, accused of being involved in his wife's killing.
"These are both schedule six offences," he said. "The Dewani judgment shows an approach that courts should apply."
Mr Ntsebeza said the court could also impose conditions when granting bail that could limit the risk of the accused evading trial. "Otherwise bail is going to be an empty right," Mr Ntsebeza said.
In a recent case concerning bail, the Eastern Cape High Court in Grahamstown granted bail to a man accused of raping his six-year-old daughter. The magistrate had previously refused the man bail.
But High Court Judge Eldrid Smith said the meaning of "exceptional circumstances" was not meant to be punitive and should not be interpreted to mean that an accused who had demonstrated he would stand trial and would not cause harm to the administration of justice or society should be detained.
Judge Smith said the magistrate appeared to have considered the evidence of the appellant in isolation and, in the light of the seriousness of the crime, come to the conclusion there were no exceptional circumstances that would permit the appellant's release on bail.
The judge said that in determining whether or not exceptional circumstances existed, magistrates were required to consider the totality of the evidence before them and, on that basis, decide whether or not the interests of justice would permit the release of the accused on bail.
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