Appeal no 309/02

In the matter between

BRUCE   EHRLICH

APPELLANT

and

THE  STATE

RESPONDENT

Coram
:
SCOTT,  STREICHER et  CONRADIE  JJA
Heard
:
21 AUGUST  2002
Delivered
:
13 SEPTEMBER 2002

Bail appeal – appellant facing charges of indecent assault involving boys –
bail previously cancelled for breach of bail conditions – appeal without
merit

J U D G M E N T

______________________________________________________________

SCOTT JA/...

SCOTT  JA:

[1] 
This is an appeal against the refusal to grant bail.  The appellant
is currently on trial in the Regional Court, East London, where he faces 14
counts of indecent assault involving minor boys.  He is not a first offender.
He was convicted of the same offence in 1991.  By reason of the previous
conviction, the offences with which he is now charged fall within the ambit of
Schedule 6 of the Criminal Procedure Act 51 of 1977 (‘the Act’).  This being
so, the appellant was obliged in terms of s 60 (11) (a) of the Act to establish
on a balance of probabilities the existence of exceptional circumstances which
in the interests of justice permitted his release on bail. (The section has
survived the scrutiny of the Constitutional Court.  See S v Dlamini 1999 (4)
SA 623 (CC) at 661 D et seq.)   Surprisingly, no mention is made of s 60 (11)
(a) and its effect on the application in the judgment of the magistrate refusing

bail or in the judgment of the Court a quo dismissing the appeal.  In the event,
it is of little consequence.  Even applying the ordinary principles applicable to
bail applications as set out in ss 60 (4) to 60 (9) of the Act I am satisfied that
bail was correctly refused.  Indeed, I have difficulty in appreciating why leave
to appeal was granted at all, let alone to this Court.
[2] 
The matter has a long history.  The appellant was arrested in
March 2000.  He applied for bail, but it was refused.  He applied again on 5
May 2000.  This time he was successful mainly, it would seem, because it
was anticipated that the trial would only commence in September of that year.
The conditions of bail were stringent.  One of them was that the appellant was
not to be in the company of anyone under the age of 18 years.  Thereafter, on
three occasions, viz 9 June 2000, 21 September 2000 and 15 November 2000,
he applied unsuccessfully to have the bail conditions amended.  He appealed
against the refusal on the last occasion but the appeal was dismissed on 19

December 2000.  This did not deter him.  He ignored the condition in
question and on 14 May 2001 his bail was cancelled in terms of s 66 (1) of the
Act.  He appealed but the appeal was dismissed.
[3] 
On 7 June 2001 the appellant again applied for bail.  It was
refused.  Further applications for bail followed on 30 August, 25 September
2001 and on 21 February 2002.  All were refused.  The present appeal is a
sequel to the refusal of bail on 21 February 2002.
[4] 
In  the meantime, the trial finally commenced in September
2001.  There were various reasons for the delay.  In 1996 the appellant had
been charged in the Knysna Regional Court on a number of counts involving
alleged offences of a similar nature to those he presently faces.  During the
course of the trial one of the assessors withdrew and the proceedings were set
aside on review by the Cape High Court.  One of these counts related to an
offence allegedly committed in the Eastern Cape.  This count was added to

those the appellant presently faces, but it all took time.  Once the trial
commenced, it appears that progress was slow. Not only was there a heavy
court roll to contend with but much time was lost while the appellant
consulted with his legal aid attorney after each witness completed his
evidence-in-chief.  The appellant also brought three separate applications for
the presiding magistrate to recuse  himself.  All were refused.  The last was
heard on 14 December 2001.  The appellant appealed but without success.
[5] 
While out on bail the appellant was given legal aid.  The
appellant was highly critical of the attorney appointed to act on his behalf and
following the application to have the appellant’s bail withdrawn the attorney
applied for and was granted leave to withdraw.  Another attorney was
appointed by the legal aid board.  He too was criticized  by the appellant and
after he had been relieved of his mandate he withdrew in February 2002
shortly before the bail application on 21 February 2002.  By this time the trial

had taken up some 20 court days.  Eighteen witnesses had given evidence,
including the complainants in seven of the 14 counts.
[6] 
The appellant was unrepresented at the hearing on 21 February
2002.  At the time he was embroiled in a dispute with the legal aid board
which apparently was reluctant to afford him further legal aid in the light of
what had gone before.  In addition, he wanted to be represented by an
advocate, not an attorney.  One of the grounds he advanced at the bail hearing
was that by reason of his detention in prison and inability to generate funds he
was unable to procure legal representation which he required not only for the
trial but also for two applications he wished to bring before the High Court,
one being for a stay of the criminal proceedings on the ground of
unreasonable delay, the other to review the decision of the legal aid board.
[7] 
It was on the strength of this ground that the Court a quo granted
the appellant leave to appeal.   Indeed, despite the appellant’s assertions to the

contrary, there were in reality no other new facts distinguishing the
application from the previous one.   (I mention in passing that we were
informed by counsel that the appellant has in the meantime been afforded
further legal aid and that the trial has progressed to the stage where the State
has closed its case.)
[8] 
The dilemma in which the appellant temporarily found himself,
viz without legal representation and deprived by reason of his imprisonment
of the ability to earn money to pay for such representation, is no doubt a
factor which in appropriate circumstances  may be taken into account when
determining the issue of bail.  But it goes without saying that it is a factor
which must be weighed in the light of other relevant considerations.  The
appellant was largely instrumental in the withdrawal of his second attorney.
The predicament in which he found himself was therefore at least partly his
own doing.  But quite apart from the circumstances in which the attorney

came to withdraw there are other factors which weigh heavily against the
granting of bail.  As previously mentioned, the appellant has a previous
conviction for a similar offence.  On that occasion he pleaded guilty.
Professor Edwards of Rhodes University was called to give evidence in
mitigation.   On the basis of his clinical examination of the appellant he
diagnosed him as being a regressive paedophile. The appellant denies the
correctness of Professor Edwards’s diagnosis and  denies that he was guilty of
the charge to which he pleaded guilty.  He now insists that he pleaded guilty
as a result of poor legal advice. His evidence in this regard is hardly
persuasive.  Following his plea of guilty, he was sentenced to imprisonment
which was suspended conditionally.  One of the conditions was a prohibition
against making contact with under-age boys.  As a result of a breach of this
condition the sentence was put into operation and the appellant was sent to
prison.  This notwithstanding, he breached a similar condition while out on

bail pending the commencement of the trial in the present case.  As in the
case of the previous breach the appellant sought to justify his conduct, but the
excuse is unconvincing.  The point is that he  breached a condition of his
suspended sentence with full knowledge of the consequences.  This landed
him in prison.  While out on bail in the present case he sought, but failed, to
have the condition removed.   He even took the magistrate’s refusal on
appeal.  Once again he breached the condition.  As the Court a quo correctly
observed, the appellant has shown himself to be unworthy of being trusted.
[9] 
Even applying the ordinary principles applicable in applications
for bail,  I can see no basis for interfering with the decision of the magistrate
to refuse bail in the exercise of his discretion.  In the present case, as I have
said, the appellant was obliged in terms of s 60 (11) (a) of the Act to establish
the existence of exceptional circumstances which in the interests of justice
permitted his release on bail.  He quite clearly failed to do so.

[10] The appeal is dismissed.

D G  SCOTT

JUDGE OF APPEAL
CONCUR:

STREICHER
JA
CONRADIE
JA