Kelane v Director of Public Prosecution (CRI/APN/78/04 )

Case No: 
Media Neutral Citation: 
[2004] LSHC 96
Judgment Date: 
18 August, 2004




In the matter between:





Delivered by the Honourable Mr Justice T. Nomngcongo on the 18th day of August. 2004

This is an opposed application for bail. The accused together with three others is charged on three counts: one of murder, the other of "armed" robbery and also of illegal possession of a firearm in contravention of the internal security [Arms and Ammunition] Act. No. 17 of 1966 as amended by the internal security [Arms and Ammunition] Act. No. 4 of 1999. The firearm was presumably the one used in the commission of the murder and the robbery alleged. The victim is a policeman.

The applicant avers that around December 2003 he was in the company of one Tsepo and another Never. The two names seem to be those of accused 2 and accused 3 in the charge sheet. It was around 1 p.m. but rather strangely he says he went home to sleep. He goes on to say he was later arrested and charged with murder. This was presumably the same day. His brother was due to be buried on the 31st December. He is "also supposed to be attending school, as the school re-opened on the 21st day of January 2004". The brothers' funeral and the fact that he has to go to school are cited as exceptional circumstances for purposes of being admitted to bail.

This application is opposed by the crown. The opposing affidavit of Det. Tpt. Kubutu is to the effect that the crown has evidence of objects robbed


off the deceased that were found on the applicant and others that were pointed out by the applicant and his co-accused. Thus it is contended the crown has a prima facie case. Where the crown opposes bail as it does in the present case, it must place before court a prima facie for if it does not "then the suggestion that the state's case is non-existent or doubtful becomes a foregone conclusion" per Horn J.A. in S.V. Jonas 1998 (2) SACR 677 at 679 (h).

At this stage of the proceedings (bail application) the crown is not expected to be in a position such as that at the close of the crown case. All it has to do is to place material before the court that the arrest of a suspect and his subsequent arraignment is in good faith and raises a genuine dispute. It would of course be a futile exercise to list instances of such material; they are as many as the individual cases that come before us. I am satisfied in the present case that, that some items allegedly taken from the victim were found from the applicant, if proved in a trial would go a long way in


establishing the guilt of an accused in a trial. I would agree therefore that a prima facie case has been established by the crown.

The crimes charged being inter alia murder and robbery and especially the victim here being a policemen an evidentiary onus lies therefore on the applicant to

"adduce evidence which satisfies the court that exceptional circumstances exist where in the interest of justice permit his or her release" Sec. 109A of the Criminal Procedure and Evidence Amendment Act 2002.

Unless an applicant discharges this onus on a balance of probabilities the court is enjoined to detain him in custody until he is dealt with in accordance with the law. What the term "exceptional circumstances''' means is not defined in the act. But in my view, it must be given its ordinary dictionary meaning "unusual; not typical" (Concise Oxford English Dictionary). Monapathi J. agrees in NTHAKO MATSEPE & TWO OTHERS V D.P.P. CRI/APN/86/02 (unreported) and so does Guni


J. in TANKI MOLIBELI VS D.P.P. CRI/APN/730/03 (unreported).

In practice however it may not be so easy to determine whether a particular case presents an exceptional circumstance. That a person is sickly may not of itself be exceptional for it is not unusual for the large majority of us to be sick at one point or another. But if a person were to say that he is so sick that he requires special treatment in the absence of which he is likely to die and he cannot get it while in custody, that would lend a different colour to the circumstances of an applicant so that it might be in the interests of justice that he be released.

Having said that I do not think that it is sufficient to merely posit facts about an applicant without further showing how they are so exceptional in the circumstances that the interests of justice require that the applicant be released on bail. In my view some elaboration is required to enable the court to be satisfied in this regard.


In the instant case the applicant merely says that he did not commit the murder of the deceased and stops there. Well, he would say that, wouldn't he? This constitutes a bare denial against an accusation that is specific as to time and place. Clearly such a denial is not sufficient. What makes the position of the applicant worse is that he was afforded another opportunity to elaborate on this denial when the crown's answer was that not only does it allege commission of the offence but offers some evidence for what it is worth, for such allegation. No reply was forth-coming from the applicant.

He further says his brother has passed away and is to be buried on a certain date. Death and burial though admittedly always painful events can hardly be described without further ado as exceptional circumstances if only because they will happen to us all some time or other. In the present case the circumstance, could not avail the applicant anyway because the relative had already been buried.


Finally applicant says he is "supposed" to or "has to go to" school. This is an ambiguous statement. It is unhelpful. It does not tell us whether he does in fact go to school or whether he only intending to do so. How does a court assess whether it is in the interests of justice to release an applicant if he does not show himself for what he is.

The applicant has failed to show that there are any exceptional circumstances at all that would favour his release on bail. Bail is refused.



For Applicant : Mr Mokoko

For Respondent : Ms Khasipe