South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: A535/98

DATE:15 SEPTEMBER 1998

In the matter between:

ROY ERNEST SELLERS..............................................................................................Applicant

and

THE STATE............................................................................................................. Respondent

JUDGMENT

WILLIS AJ: This is an application for leave to appeal against my dismissal of the appeal against the refusal of bail by the learned magistrate.

Counsel for the applicant in this matter has made much of the fact that during the course of argument in the hearing of the appeal I had indicated that this seemed to be an open and shut case. I accept that I may have overstated the position. The remark was made en passant and intended to be laced with sarcasm and to have been understood as such.

Nevertheless the following facts are common cause: It is common cause that the accused killed his wife by shooting her. It is common cause that he killed her by using a firearm. It is common cause that the firearm was found in his possession very shortly after the killing had taken place. It is also common cause that he indicated to various police officers shortly after the killing of his wife that he did it because she drove him crazy. it seems to me that this is what is generally known as a strong prima facie case. Whether or not there is a strong prima f acie case is always a relevant consideration in the granting of bail.

Of particular significance are the provisions of section 60(11) of the Criminal Procedure Act, No. 51 of 1977, which provides that notwithstanding any provision of this Act where an accused charged with an offence referred to in Schedule 5;

(b) in Schedule l which was allegedly committed whilst he or she was released on bail in respect of a Schedule 1 offence, the court can 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, satisfies the court that the interests of justice do not require his or her detention in custody." It seems to me that this recent amendment sets down a clear policy by the legislature that In cases such as this an accused person should not be released on bail unless there are good and compelling reasons why the contrary should be the case. In my view the accused did not show good and compelling reasons why he should be released on bail and that is the reason why I dismissed the appeal.

Nevertheless, I am aware that there are certain members of the judiciary who believe that notwithstanding the provisions of sub-section (11) of section 60, that the classic test, which is colloquially known as the hamper, tamper or scamper test, is still applicable. I accept that in this case it is unlikely that the accused, if released on bail, would interfere with the investigations of the police into this matter. I also accept it is unlikely that the accused would interfere with any witnesses. I furthermore accept that it is unlikely that he would not stand trial by being a fugitive from justice. A relevant consideration is that the accused, shortly after the incident, threatened to commit suicide. It would seem from the record that he was evasive and not entirely candid about this particular threat and I accept that the state has a legitimate concern in preventing an accused person from committing suicide in order to ensure that he stands trial. The state has the legitimate interest in knowing the reasons why this particular accused shot and killed his wife and a legitimate interest in there being an appropriate sentence handed down in a case such as this.

Nevertheless it does seem to me that there is a reasonable prospect that another court would have come to a different conclusion from my own in this particular case and that ipso facto there are therefore reasonable prospects of success in an appeal. For these reasons the application for leave to appeal succeeds and leave to appeal is granted.

ON BEHALF OF APPLICANT : ADV STRYDOM

Instructed by: Galloways

ON BEHALF OF RESPONDENT : ADV A VAN DER COLFF

DATE OF JUDGMENT : 15 SEPTEMBER 1998