Lenea v Director of Public Prosecutions (CRI/APN/517/04 )

Case No: 
Media Neutral Citation: 
[2004] LSHC 110
Judgment Date: 
9 September, 2004




In the matter between:-





Delivered by the Honourable Ms Acting Judge N. Majara on the 9th September 2004

Applicant herein is charged with the crime of robbery and is presently incarcerated at Teyateyaneng prison in the district of Berea. He approached this court with an application for bail as per his prayers as outlined in his notice of motion in the following terms:

  1. That he pays bail deposit of M200.00.

  1. That he reports at Teyateyaneng Police Station every last Friday of the month between 8.00 a.m. and 4.30 p.m.

  1. That he does not interfere with crown witnesses.

  1. That he attends remands and stands his trial.

The application was opposed by the crown and after both counsel for applicant and respondent had duly filed their respective papers, the matter was argued before me on the 31st August 2004.

In his founding affidavit, applicant stated that the court should grant him the application because he has prospects of success and that his defence is that of alibi. He went on to explain that on the date in question, he was not in the place where the alleged offence took place but instead was in Maseru where he had been looking for a job in the firms. That is about as far as he went and this formed the gist of his reasons even in his replying affidavit.

In their opposing papers respondents showed that applicant is charged with a serious crime of robbery and that his defence of alibi is not water tight in that he has failed to take the court in his confidence with regard to his whereabouts on the day in question. Furthermore, the opposing affidavit of the investigating officer states that he has in his possession evidence which clearly implicates and links applicant to the commission of the offence over and above the fact that the complainant knows the applicant very well, having known him for a number of years when he was previously employed in the same village where the alleged robbery took place.

In addition, the crown pointed out that the crime with which applicant is charged falls within the ambit of Section 109 A of the Criminal Procedure and Evidence (Amendment) Act No. 20 of 2002. This section provides and in as far as it is

relevant to the charge in casu as follows:

"Notwithstanding any provision of this Act, where an accused person is charged with

  1. robbery, and the robbery involved –

(i) the use of a firearm by the accused, any co-perpetrator or participant in the robbery

(ii) the infliction of grievous bodily harm by the accused (my underlining) or any of the co-perpetrators of participants; or.......

The court shall order that the accused person be detained in the custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release.".

The above provision clearly makes it imperative that as a first step, applicant has to demonstrate to the court the existence of exceptional circumstances, in the event of which the court could rule in his favour. My opinion is based on the fact that, this provision is the latest amendment to the statutory provision of bail as is found in the Criminal Procedure and Evidence Act. The provision has been added over and above the existing common law principles and considerations that apply to the question of bail. My understanding therefore is that, the requisites of this provision should be satisfied even before the court can consider the common law principles of bail.


Exceptional circumstances have not been clearly defined but several authorities have discussed the expression at length. In S v Jonas 1998 (2) SACR 677 Horn AJ, had this to say,

"There can be as many circumstances which are exceptional as the term in essence implies.....When a man is charged... when everything else points to the fact that he could not have committed the offence because, e.g he has a cast-iron alibi, this would likewise constitute an exceptional circumstance."

Applicant in casu tenders alibi as his defence. The question at hand is has he demonstrated that indeed he has a cast-iron defence? Some authorities have stated that where the accused raises the defence of alibi, it is fallacious to suggest that the burden of proof is on him to prove such alibi. However., it has further been stated that this would be the case in a situation where identification of the accused is in issue. See The South African Law of Evidence Hoffman and Zeffert p 619. See also, S v Hlongwane 1959 (3) SA p337.

It has also been stated that the correct approach would be to consider the totality of the evidence in deciding whether or not to reject the defence. In applying this test in casu, I have looked at both applicant and respondent's contentions in their affidavits.

Applicant on the one hand states that he could not have committed the offence because at the material time he was in Maseru looking for a job. Respondent on the other hand states through the investigating officer's opposing affidavit that there is in his possession evidence that clearly links applicant with the offence and that his identity is not in question because complainant knows him very well. This last fact is not denied by applicant.

Upon looking at all the circumstances in totality, the court feels that applicant has fallen short of demonstrating that his defence of alibi is water tight. His defence of alibi is too vaguely stated to quite convince the court. This therefore means that he has failed to satisfy the court that exceptional circumstances do exist on the basis of which I could grant him bail.


This being the only factor he raised in moving his application, the court feels that he has failed to satisfy the requirements of Section 109 A and therefore his application is refused.

However if the crown fails to timely prosecute the offence, and the accussed's circumstances change, he is free to approach the court to renew his application.



For Applicant : Ms Mafisa

For Respondent : Mr Mahao