The Johannesburg high court on Wednesday granted the state leave to appeal the Randburg regional court's decision in July to grant bail to 12 members of the South African Defence Force (SANDF) Special Forces.
The 12 face charges relating to the alleged kidnapping of Abdella Abadiga and Kadir Jemal Abotese at the Mall of Africa on December 29 2022 and the murder of Hawks investigator Lt-Col Frans Mathipa, on August 6 2023.
When granting them bail, the court found that the state had a weak case and that the accused successfully discharged the onus placed on them to show that exceptional circumstances existed which, in the interest of justice, permitted their release on bail.
Dissatisfied with this decision, the state filed a notice to appeal, on various grounds, said National Prosecuting Authority spokesperson Phindi Mjonondwane.
One of the grounds was that the magistrate placed the onus on the state to prove the strength of its case by placing evidence before the court. This was contrary to requirements of the Criminal Procedure Act, which placed the evidentiary burden on the accused to convince the court, on a balance of probabilities, the existence of exceptional circumstances warranting their release on bail.
“The state further submitted that the magistrate failed to have proper regard for the strong circumstantial evidence presented by the state and that the bare denial of complicity by the accused did not amount to exceptional circumstances,” she said.
The submissions by the accused in their responding documents cited that an appeal by the state against the granting of bail lay only against points of law.
“This was disputed by the high court, as it remarked that bail appeals have no such qualification. It stated that the question in bail appeals relates to the wrongness of the magistrate’s decision, which may either be on a point of law or on the factual findings,” Mjonondwane said.
The high court said the question before it was whether there existed reasonable prospects that a court of appeal may find that the magistrate, who granted the accused bail, exercised her discretion wrongly.
The judge concluded there was a reasonable prospect that an appeal court may find the magistrate misdirected himself or herself.
The case was postponed to September 17 for further investigations. The date for the appeal hearing will be communicated to both parties in due course.
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