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    Understanding refusal of bail

    The case of Mabizela Nkosisikhona 

    Do you understand how bail works in South Africa? If you or someone you know is arrested, it’s important to understand this. Bail is a sum of money paid to the court when someone is arrested that allows them to be released from custody until trial. Bail lets an accused person return home until the trial. But if they fail to show up in court or break any of the bail conditions, the bail may be forfeited. Otherwise, it is repaid to the accused following the trial, whether the accused is found guilty or not guilty. Can there be refusal of bail?

    By law, everyone has the right to apply for bail. But it is not always granted. Whether or not bail is granted will depend on the seriousness of the offence and other factors. The following case illustrates how our bail process works and why it may be refused, despite the best attempts of the accused’s defence to convince the court otherwise. 

    Background of the case 

    Mabizela Nkosisikhona was accused of participating in a murder and was denied bail by the Orlando Regional Court. In June 2024, the High Court reviewed his appeal to be granted bail while awaiting trial. However, the appeal was overturned and bail was ultimately refused. We look at the key aspects of the case to understand why.  

    The incident occurred on March 28, 2024, in Soweto, Johannesburg. Nkosisikhona (referred to as “the appellant”) and a co-accused were implicated in the murder of Thokozani Vilakazi. According to the prosecution, a group of six young men, including the appellant, were drinking at a hostel before heading to a nearby tavern to buy more alcohol. An altercation ensued and, as they left the tavern, Vilikazi approached them on the street. At this point Vilikazi was shot and killed by a third individual, Siboniseni Mbatha. 

    The appeal and legal context 

    Nkosisikhona’s appeal was based on several arguments. His defence maintained that the court was mistaken in classifying the murder as premeditated. Defence counsel also argued that the court did not properly consider the provisions of the Criminal Procedure Act and the Constitution, and there were exceptional circumstances warranting his release on bail. Nkosisikhona’s legal team referenced several precedents to support their case, suggesting that the evidence against him was weak and he did not foresee the tragic outcome of the shooting. 

    Legal framework for bail in South Africa 

    Under South African law, an accused charged with premeditated murder must demonstrate exceptional circumstances that justify their release on bail in the interests of justice. This is a stringent requirement, designed to balance the rights of the accused with the safety and interests of the public. 

    The court’s evaluation 

    The court evaluated several factors in Nkosisikhona’s appeal: 

    1. Nature of the offence: The court reaffirmed that the offence of premeditated murder was a serious one, automatically setting a high bar for bail.
    2. Evidence of common purpose: The doctrine of common purpose was central to the prosecution’s case. This legal principle holds that individuals who collaborate in a crime can be held equally responsible for the actions of any one of them if they shared a common intent. The court found that Nkosisikhona’s presence at the scene, his interaction with Mbatha before the shooting, and his failure to dissociate from the crime were all indications that he could reasonably have foreseen the fatal shooting.
    3. Personal circumstances: Nkosisikhona presented his personal circumstances as mitigating factors. He was 23 years old, employed, and responsible for supporting his young child and unemployed parents. However, the court noted that these factors did not constitute exceptional circumstances under the law, especially given the seriousness of the charge.
    4. Risk of flight: The court assessed whether Nkosisikhona posed a flight risk. His lack of significant assets, the severity of the potential sentence, and the strength of the evidence against him all suggested he might evade trial if released on bail.

    Key legal precedents 

    The court referenced several important legal precedents in its decision: 

    • S v Jones: This case established that exceptional circumstances for bail must involve evidence that casts serious doubt on the prosecution’s case. 
    • S v Mohammed: This case clarified that exceptional circumstances must be both unusual and in the interests of justice. 
    • S v Mathebula: In this case, the Supreme Court of Appeal judged that an applicant must prove on a balance of probabilities that they will be acquitted in order to challenge the determination of bail. 

    Outcome of the case and implications 

    After careful consideration of all the evidence and legal arguments, the court concluded that Nkosisikhona had not met the burden of proof required to demonstrate exceptional circumstances. His actions on the night of the murder, his failure to alert authorities, and the strong evidence linking him to the crime under the doctrine of common purpose all weighed against him. Therefore, the court dismissed his appeal and upheld the decision to deny bail. 

    This case illustrates the rigorous standards applied in South African courts when considering bail for serious offences like premeditated murder. It underscores the importance of demonstrating exceptional circumstances and the court’s duty to balance individual rights with public safety. The refusal of bail in this case serves as a reminder of the legal principles designed to prevent individuals accused of serious crimes from evading justice. 

    Contact us 

    Cape Town attorneys SD Law & Associates are experts in criminal defence and bail. If you have been refused bail, we will review your case. Contact criminal defence lawyer Simon Dippenaar on 076 116 0623. 

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    The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.