REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number 008/06
Reportable

In the matter between:

ROBERT GREEN                                           FIRST APPELLANT
BHEKI MASHABA                                    SECOND APPELLANT

and

THE STATE                                                              RESPONDENT

CORAM:

FARLAM, HEHER JJA et CACHALIA AJA

HEARD:

11 JANUARY 2006

DELIVERED:
3 MARCH 2006

SUMMARY:
Criminal Procedure – bail – refusal – Court’s discretion to invoke
s 60(3) Act 51 of 1977.
Neutral citation: This judgment may be referred to as R Green and Another v The
State [2006] SCA 3 (RSA).
________________________________________________________

JUDGMENT
________________________________________________________

FARLAM JA

INTRODUCTION
[1] The two appellants in this matter, who are charged in the
magistrate’s court for the regional division of Mpumalanga with robbery
with aggravating circumstances involving the use of firearms, appealed to
the Pretoria High Court against the decision by a regional court magistrate
to dismiss their application for bail and to order, in terms of section
60(11)(a) of the Criminal Procedure Act 51 of 1977, as amended (to which
I shall refer in what follows as ‘the Act’), that they be detained in custody
until dealt with in accordance with the law.

[2] The magistrate had found that the appellants had failed to establish
exceptional circumstances justifying their release on bail in the interests of
justice.

[3] Bosielo J dismissed the appellants’ appeal, holding that the
magistrate was correct in finding that there were no exceptional
circumstances justifying the release of the appellants on bail in the
interests of justice.

2.
RELEVANT STATUTORY PROVISIONS
[4] It is convenient at this stage to set out the statutory provisions
which are relevant in this matter. They are contained in section 60(1), (2),
(3), (10 and (11).
These sub-sections, as far as is material, read as follows:
‘(1)(a)  An accused who is in custody in respect of an offence shall … be
entitled to be released on bail at any stage preceding his or her conviction
in respect of such offence, if the court is satisfied that the interests of
justice so permit.
(2)  In bail proceedings the court –
. . .
(c) may . . . require of the prosecutor or the accused . . . that evidence be
adduced . . . .
(3)
If the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal or that it lacks certain

important information to reach a decision on the bail application the
presiding officer shall order that such information or evidence be placed
before the court.
…
(10) Notwithstanding the fact that the prosecution does not oppose the
granting of bail, the court has the duty … to weigh up the personal
interests of the accused against the interests of justice.
(11) Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to –
(a)
in Schedule 6, the court shall order that the accused be detained in
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 interests of justice permit his of her release. ..’

[5] Among the offences listed in Schedule 6 of the Act is robbery
involving the use by the accused or any co-perpetrators or participants of a
firearm.

[6] In terms of section 65(4), which deals with bail appeals to the High
Court from decisions in lower courts, the court hearing the appeal ‘shall
not set aside the decision against which the appeal is brought, unless such
court … is satisfied that the decision was wrong, in which event the court
… shall give the decision which in its … opinion the lower court should
have given.’

[7] Section 60 of the Act was extensively added to by amendments
effected by the Criminal Procedure Second Amendment Acts of 1995 (Act
75 of 1995) and 1997 (Act 85 of 1997). These amendments gave rise to a
number of constitutional challenges to the new bail dispensation, including
the provision in subsection 11(a). These challenges were considered by
the Constitutional Court in a judgment reported as S v Dlamini; S v Dladla
and Others; S v Joubert; S v Schietekat 1999(4) SA 623 (CC). In what
follows I shall refer to that judgment as ‘the Dlamini decision’.

[8] The Constitutional Court upheld the constitutionality of the
provisions challenged. As far as sub-section 11(a) is concerned it held that
the inclusion of the requirement of ‘exceptional circumstances’ in the sub-
section limited the right ‘to be released from detention if the interests of
justice permit, subject to reasonable conditions’, which is enshrined in
section 35(1)(f) of the Constitution, but was a limitation which was
reasonable and justifiable in terms of section 36 of the Constitution.

3. PROCEEDINGS IN THE COURT OF FIRST INSTANCE
[9] In the charge sheet in the present case the State alleged that the
appellants were guilty of robbery with aggravating circumstances (as
defined in section 1 of the Act) in that on the 9th September 2005 at or
near Nelspruit they assaulted four persons and with force took from them
R7 276 150, the aggravating circumstances being the use of firearms.

[10] When the appellants first appeared in court there were two persons
charged with them, namely PT Makhakula and SG Nkosi. The appellants’
attorney, who was also appearing for Makhakula and Nkosi, opposed an
application brought by the State for a postponement to enable it to prepare
for a bail application to be brought by the appellants and their co-accused.
Shortly after an adjournment to enable discussions between the
prosecutor and the defence attorney to take place, the prosecutor
announced that he was withdrawing the case against Makhakula and
Nkosi and stated that they would probably be used as State witnesses.
The investigating officer, Superintendent MF Molapo, then testified in
support of the State’s application for a postponement.

[11] In cross-examination it emerged that the second appellant was the
security manager at the place where the robbery occurred. It was put to
him that Makhakula and Nkosi, who had apparently made statements
implicating the appellants, averred that they had been assaulted and
forced to make statements that were false. This he denied. The defence
then called Makhakula and Nkosi, who repeated under oath what the
defence attorney had put to Superintendent Molapo.

[12] The State’s application for a postponement of the case until 24
October 2005 was granted.

[13] On 24 October 2005 the defence attorney applied for access to the
police docket, but this application was refused by the magistrate, basing
his decision on section 60 (14) of the Act, which in terms provides that an
accused does not have the right of access to the police docket at the bail
stage.

[14] The magistrate did, however, grant a defence application calling on
the State to indicate on what grounds it averred that the appellants were
linked to the robbery.

[15] In response to this the prosecutor gave the following information as
to the grounds on which the State relied for its contention that the
appellants were linked with the robbery:
(a)
an amount of approximately R80 000 had been seized by the
police, who were in the process of investigating whether this money could
be identified as part of the R7 million taken during the robbery;
(b)
the appellants were also connected to the crime by fingerprints;
(c)
they had been identified as persons visible on closed circuit
television film taken during the robbery;
(d)
clothing resembling that worn by participants in the robbery was
subsequently seized while in their possession;
(e)
certain vehicles had been bought immediately after the robbery,
some of which had, as the prosecutor put it, been ‘confiscated’ by the
Asset Forfeiture Unit;
(f)
some of the properties so purchased had disappeared but the
police and the Asset Forfeiture Unit had the necessary particulars
regarding these properties;
(g)
two persons [clearly in the circumstances he was referring to
Makhakula and Nkosi] had made statements implicating the appellants.

[16] The defence attorney then applied for access to the closed circuit

television tapes. The State opposed the application and it was dismissed.

[17] On the following day the two appellants testified in support of their
application. They both denied that they were linked in any way with the
robbery. The second appellant said that he was not at the scene when the
robbery took place but had been there earlier and that while he was on his
way to go to one of the paypoints he had been telephoned and told about
it. Both appellants testified that they would stand their trial, not interfere
with state witnesses or the police investigation and not commit any
offences in the interim.

[18] Superintendent Molapo, the investigating officer, then testified for
the State in support of the State’s opposition to the application. Most of
what he said in chief was destroyed in cross-examination and it is
accordingly unnecessary for me to summarise it. The magistrate was well
aware of the aspects in respect of which Superintendent Molapo’s
evidence was discredited in cross-examination. The aspects on which he
relied in his judgment were the following:
(a)
the first appellant’s fingerprints were found on the utility vehicle
which was used by the robbers as a getaway vehicle to escape with the
proceeds of the robbery and which was later found abandoned;
(b)
it is clear from the video film taken by the closed circuit television
camera that the first appellant was the driver of the getaway vehicle;
(c)
a t-shirt which the first appellant wore when he appeared in court
resembled the t-shirt worn by the appellant during the robbery according to
what could be seen on the closed circuit television film;
(d)
the second appellant could be seen on the closed circuit television
film arriving for work substantially before the normal time, talking to two
security officers, embracing them and kissing one of them, a female,
leaving the scene and returning to report for work in the normal manner,
the security officers in question being the persons who were later seen
helping the robbers to load the proceeds of the robbery onto the getaway
vehicle;
(e)
the second appellant’s employer stated in an affidavit that the

second appellant had reported to him before the robbery that the first
appellant had approached him for information to enable him to commit a
robbery, that the second appellant had been told to investigate the matter
so that a case could be brought against the first appellant, which did not
happen before the robbery took place;
(f)
the State was in possession of other affidavits which indicated that
the second appellant, although it had nothing to do with his job description,
had on various occasions shortly before the robbery made enquiries
relating to the amount of cash that was in the safe on the premises at
certain times.
(Counsel for the State conceded in the course of argument in this court
that there were no other aspects of Superintendent Molapo’s evidence
which survived the cross-examination and which require to be considered.)

[19] The appellants’ attorney submitted that the appellants had
established the presence of exceptional circumstances which justified their
release as being in the interests of justice. He contended that the
appellants’ evidence, which had not been contradicted, should be
accepted and that the evidence of the investigating officer should be
rejected. He then subjected this evidence to detailed criticism which it is
not necessary for me to repeat. Dealing with the evidence that the
appellants were linked with the robbery by what appears on the closed
circuit television video he pointed out that the State whose case could in
no way be prejudiced by showing the video to the court, possibly even in
the absence of the appellants and their attorney, had refused to do so.
Relying, inter alia, on the judgment of this Court in S v Botha 2002 (1)
SACR 222 (SCA) at para [21], in which it was said that proof by an
accused that he will probably be acquitted can constitute exceptional
circumstances, he submitted that was in fact no evidence against the
appellants and that they should accordingly be released on bail.

[20] In his judgment refusing the application the magistrate held that,
although there were certain aspects in respect of which Superintendent
Molapo’s evidence rested, as he put it, on ‘wankelrige bene’, there were

other aspects ‘wat wel deeglik water hou’ and on the strength of which he
could find that there was what he called ‘’n prima facie sterk saak’ against
the appellants. The aspects to which he referred are those summarized in
par [18] above. He was not prepared to find that Superintendent Molapo’s
evidence on these points could be rejected. His reasoning on the point
appears from the following passage in his judgment:
‘… ons [weet] almal dat meineed ‘n ernstige  misdaad is en indien Malapo
vir die Hof gelieg het aangaande die sterk saak teen die beskuldigdes wat
op hierdie stadium tot beskikking van die Staat is dan kan hy van meineed
aangekla word en sal hy waarskynlik in sy posisie en hoedanigheid direkte
gevangenisstraf in die gesig staar. As dit dus sou blyk dat Malapo onder
eed in hierdie hof gelieg het oor die feit dat beskuldigde nommer 1 se
vingerafdrukke op die gewraakte voertuig gevind is en dat die Staat
inderdaad oor daardie getuienis beskik, sal dit baie maklik wees vir die
Staat om hom te vervolg op ‘n aanklag van meineed. Dieselfde gaan
natuurlik oor of indien hy sou gelieg het oor dit wat waarneembaar is op
die beelde van die geslote kring televisie kameras of die ander
getuieverklarings waarna hy verwys het met verwysing na beskuldigde 2
se betrokkenheid. Daarmee saam kan daar natuurlik, indien hy gelieg het,
uiteindelik ‘n geweldige siviele eis teen hom ingestel word, teen hom en
die toepaslike ministers vir kwaadwillige arrestasie en vervolging en
kwaadwillige opponering van die borgverrigtinge. Alhoewel Malapo my
verstom het in sekere aspekte van die reg soos dat hy nie weet wat ‘n
Bylae 1 misdaad is nie, glo ek dat hy wel deeglik bewus is van die risiko’s
verbonde daaraan om te lieg oor die feite soos ek hier uitgespel het. Op
grond daarvan of weens hierdie observasies voel ek dat ek nie in ‘n
posisie is om te bevind dat Malapo inderdaad ‘n ongeloofwaardige getuie
is wie se getuienis verwerp moet word aangaande die getuienis wat tans
teen die beskuldigdes beskikbaar is nie en moet ek vir doeleindes van
hierdie saak bevind dat daar op sterkte van Malapo se getuienis inderdaad
‘n prima facie sterk saak teen die twee beskuldigdes uitgemaak kan word
ongeag hulle ontkenning dat hulle by die pleging van die misdade betrokke
was of nie.’

JUDGMENT OF COURT A QUO
[21] In his judgment dismissing the appellants’ appeal Bosielo J held
that as the appellants had not appealed against the magistrate’s refusal to
allow the appellants access to the police docket or to the material therein
which implicates the appellants, his function was limited to deciding
whether ‘the facts put on record by the appellants [met] the low threshold
as postulated in [the Dlamini decision] with regard to “exceptional
circumstances”.’ His conclusion, based on that approach was that the
magistrate’s approach could not be faulted and the appeal had to be
dismissed.

APPELLANTS’ CONTENTIONS BEFORE THIS COURT
[22] Arguing the matter in this Court counsel for the appellant submitted
that the magistrate had erred in relying on certain portions of
Superintendent Malapo’s evidence for his finding that there was a strong
prima facie case against the appellants. In this regard he pointed out that
on other important parts of the case Malapo had been shown to be
untruthful and submitted on the strength thereof that he had been shown
to be an arrogant witness, who was not deterred by the law of perjury from
giving evidence which was demonstrably false. In the circumstances, he
submitted, it was inappropriate to rely on his ipse dixit on matters as to
which the State could easily have produced the closed circuit television
video and statements from its fingerprint expert and the second appellant’s
employer and the person or persons to whom he addressed the enquiries
referred to earlier. Producing the video and the statements would not have
led to a dress rehearsal of the State’s case and would not have prejudiced
it any way. On the other hand, if the appellants’ evidence, which had not
been
significantly
challenged
in
cross-examination,
was
correct,
Superintendent Malapo’s evidence relating to the video and the
fingerprints must be false. It followed, he contended, that the appeal
should succeed and the appellants released on bail.

DISCUSSION
[23] I agree with this criticism of the magistrate’s approach and am

satisfied that the order he made cannot stand. It is accordingly incumbent
on this Court, acting in terms of section 65(4) of the Act, to give the
decision the magistrate should have given. I do not think that the
appellants’ counsel’s submission that this Court should order that the
appellants should be released on bail can be accepted without more. It
seems to me, on the particular and in some respects peculiar
circumstances of this case, that one cannot assume that the prosecutor’s
refusal to give the defence access to the closed circuit television video can
necessarily be explained on the basis that Superintendent Malapo’s
evidence in regard thereto was false: it is possible, to put it no higher, that
the prosecutor had not seen the video. (The defence application did not
relate to the other items of evidence.) It is clear from section 60 (10) that
the court’s function in a bail application is intended to be more pro-active
than in normal criminal proceedings. As it was put in the Dlamini decision
(at para [11]), ‘a bail hearing is a unique judicial function’ and ‘the
inquisitorial powers of the presiding officer are greater’. On a proper
consideration of the case on which the State relied any reasonable court
must have concluded that it lacked reliable and important information
necessary to reach a decision, notwithstanding that such information was
apparently readily available. In such circumstances the court has no
discretion but to invoke s 60(3). In my view, the magistrate should, instead
of refusing bail without more, have ordered the State to grant the defence
access to the video tapes and any statements made by the police
fingerprint experts linking the fingerprints of either of the appellants with
the crime, with the decision on whether or not to grant bail to be made
thereafter.

[24] I am aware that such an order would have been contrary to that
made earlier by the magistrate when the defence had applied for access to
the video tape but that decision was interlocutory and subject to revision in
the light of subsequent events, in this case the substantial demolition of
evidence of the investigating officer. (The fact that that decision was not
attacked on appeal, something which appears to have influenced the
learned judge in the court below, takes the case no further. An appeal

against the magistrate’s decision would have been confined to the matter
before him when he refused to order the production of the video tapes and
may well have been unsuccessful.)
ORDER
[25] The following order is made:
1.
The appeal succeeds.
2.
The order made in the court a quo is set aside and replaced by the
following:
‘A.
The appeal succeeds.
B. The order made by the magistrate is set aside and replaced by
the following:
“1.
No order on the bail application is made at this stage.
2.
The State is ordered to grant the defence access to
the video tapes and any statements made by the
police fingerprint experts relating to the fingerprints of
either the appellants linking them with the crime.”’

……………..
IG FARLAM
JUDGE OF APPEAL

CONCURRING
HEHER
JA
CACHALIA AJA

MEDIA STATEMENT – CASE HEARING IN SUPREME COURT OF APPEAL

Robert Green and Another v The State

Supreme Court of Appeal -63/04
Hearing date: 11 January 2006

Judgment date: 3 March 2006
Criminal Procedure – bail – refusal – Court’s discretion to invoke s 60(3) Act 51 of 1977

Media Summary of Judgment

Two Mpumalanga men, who are standing trial in the Regional court, Nelspruit, were partially successful
in their appeal to the Supreme Court of Appeal against the refusal by the regional magistrate to release
them on bail.
The Supreme Court of Appeal held today that the magistrate erred in making an order refusing to grant
bail to Robert Green and Bheki Mashaba, who are charged with participating in an armed robbery at
Nelspruit in September last year when over R7 million was taken. Green and Mashaba had testified at
the bail hearing that they had not been involved in any way in the robbery. They said that in the
circumstances there could be no case against them and that this constituted an exceptional
circumstance justifying their release on bail.
In reply the State called the investigating officer, Superintendent MF Molapo, who said there was a
strong case against them, including a closed circuit TV video tape showing that Green had driven the
getaway vehicle used in the robbery and Mashaba, who was the security manager at the place where
the robbery occurred, embracing the security officers who helped the robbers to load the proceeds of
the robbery onto the getaway vehicle as well as evidence that Green’s fingerprints were later found on
the getaway vehicle which was abandoned after the robbery.
Superintendent Molapo was cross-examined at the bail hearing and large portions of his evidence
were shown to be false.
The State refused to allow the defence access to the closed circuit television tapes.
The magistrate said that there was no reason to reject Molapo’s evidence regarding the television
tapes or the fingerprints and accordingly refused bail. An appeal to the Pretoria High Court was
unsuccessful.
Giving judgment in the Supreme Court of Appeal Mr Justice IG Farlam, with whom Mr Justice J Heher
and Mr Justice A Cachalia concurred, said that the magistrate should not in the circumstances have
accepted Molapo’s evidence and should have ordered the State to make available to the defence the
television tapes and the fingerprint evidence.
The decision to refuse bail was set aside and replaced by an order declining to make an order on the
bail application at this stage and directing the State to make the television tape and the statements by
the fingerprint experts available to the defence.