Section 60(1)(a) of the Criminal Procedure Act 51 of 1977 (hereinafter the “Criminal Procedure Act”) provides that an accused who is in custody for an offence shall be entitled to be released on bail at any stage preceding their conviction for such offence if the Court is satisfied that the interests of justice so permit. However, the type of offence for which the accused has been charged determines the Schedule under which the offence falls and weighs heavily when a decision on bail must be made.
Section 60(11)(a) also determines that when an accused is charged with an offence referred to in Schedule 6 of the Criminal Procedure Act, the Court shall order that the accused be detained in custody until they are dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence that satisfies the Court that exceptional circumstances exist that, in the interest of justice, permit their release.
This article explores Schedule 6 offences, the exceptional circumstances that may permit the release of an offender who has committed a Schedule 6 offence, and the case law that applies to these exceptional circumstances.
Schedule 6 offences include more severe transgressions, like:
It is important to note that there are no numero clausus of exceptional circumstances and that each application is dealt with on its own merits. Each case has its own peculiar circumstances, varying from ordinary to unique. These varying circumstances of each specific case must persuade the court that it would ultimately be in the interest of justice to release the accused on bail.
Various case laws on exceptional circumstances in bail applications demonstrate how courts determine what is classified as exceptional circumstances. Below are cases that was previously considered to be exceptional circumstances in bail applications:
In S v Mvambi 2022 ZAGPJHZ 157, the court considered a cast-iron alibi or a severe medical condition an exceptional circumstance. It is noteworthy that the courts are usually not convinced that merely presenting the accused’s personal circumstances before the court qualifies as exceptional circumstances. The courts require a little more convincing. It remains, however, very difficult to define.
In State v Jonas and Others 1998 (2) SACR 677 (SE), the Court found that the term “exceptional circumstances” in a Schedule 6 bail application is not defined. No direct causes were attached to what constitutes exceptional circumstances. The Court was of the opinion that incarcerating an innocent person for an offence they did not commit could also be viewed as an exceptional circumstance.
In S v Maja and Others 1998 (2) SACR 677 (SE), the Court found that it would be deemed an exceptional circumstance if there is no case against the accused or if there is serious doubt whether the case will succeed.
Exceptional circumstances must be circumstances that one does not generally find in all bail applications but that pertain specifically to a specific person’s bail application. Each case is dealt with on its own merit.
In S v Peterson 2008 (2) SACR 355 (C) at (55), the full bench concluded as follows on the meaning and interpretation of “exceptional circumstances”:
“Generally speaking, “exceptional” is indicative of something unusual, extraordinary, remarkable, peculiar, or simply different. This may, of course, mean different things to different people, so that allowance should be made for a certain measure of flexibility in the judicial approach to the question. In essence, the Court will be exercising a value judgement in accordance with all the relevant facts and circumstances and with reference to all the applicable criteria.”.
It is clear from the case law above that the courts are of the view that mere personal circumstances that are general and commonplace do not constitute exceptional circumstances.
The courts are of the view that all relevant considerations must be taken into account in deciding whether the accused has proven something unusual or extraordinary that will be sufficient to consider granting him bail.
The cumulative effect of the following factors is taken into account when determining exceptional circumstances in bail applications:
Ultimately and most importantly, our Constitution states: “Everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.”
In S v Mthanti 2022 (3) 2 (N) and S v Schietekat 1999 (2) SACR 51 (CC), the Court stated that:
“In the context of Section 60 (11)(a), the exceptionality of the circumstances must be such as to persuade a court that it would be in the interest of justice to order the release of the accused person. An allowance should be made for a certain measure of flexibility in the judicial approach to the question.”
Thus, numerous examples of acceptable claims exist in exceptional circumstances. Ultimately, the court will grant the accused bail when it is determined that the proven circumstances were sufficiently out of the ordinary that, in accordance with the interest of justice, bail should be granted.
Contact one of Burger Huyser Attorneys’ specialist bail application attorneys today for assistance with your bail application and any exceptional circumstances that may apply to you.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE