Bruce Ehrlich v The State

The appellant was on trial in the Regional Court, East London, facing 14 counts of indecent assault involving minor boys. He was not a first offender, having been convicted of the same offence in 1991. He was arrested in March 2000 and initially denied bail. He was granted bail on 5 May 2000 with stringent conditions, including that he was not to be in the company of anyone under 18 years. He breached this condition and his bail was cancelled on 14 May 2001 in terms of s 66(1) of the Criminal Procedure Act. He made numerous subsequent bail applications on 7 June 2001, 30 August 2001, 25 September 2001, and 21 February 2002, all of which were refused. During the trial, the appellant went through two legal aid attorneys, both of whom withdrew due to his criticism. At the time of the bail application on 21 February 2002, he was unrepresented and in dispute with the legal aid board. The trial had commenced in September 2001 and by February 2002 had taken 20 court days with 18 witnesses having testified.

• Whether the refusal to grant bail was justified
• Whether exceptional circumstances existed to permit release on bail under s 60(11)(a) of the Criminal Procedure Act 51 of 1977
• Whether the appellant's inability to secure legal representation while in custody constituted sufficient grounds for granting bail
• Whether the appellant had demonstrated himself to be trustworthy and suitable for bail

The appeal against the refusal to grant bail was dismissed.

Where an accused faces charges falling within Schedule 6 of the Criminal Procedure Act 51 of 1977 by reason of a previous conviction for the same offence, the accused bears the onus under s 60(11)(a) to establish on a balance of probabilities the existence of exceptional circumstances which in the interests of justice permit release on bail. An accused who has repeatedly breached bail conditions and conditions of suspended sentences, despite being warned of the consequences and despite unsuccessful attempts to have such conditions varied, demonstrates untrustworthiness and an inability to comply with court orders. Such conduct weighs heavily against the granting of bail and militates against a finding of exceptional circumstances. While temporary lack of legal representation and inability to generate funds while in custody may be factors in a bail application, they must be weighed against other relevant considerations, including the accused's own role in creating the predicament and the accused's previous conduct in breaching conditions.

The Court expressed surprise that neither the magistrate's judgment refusing bail nor the court a quo's judgment dismissing the appeal made any mention of s 60(11)(a) and its effect on the application, given that the charges clearly fell within Schedule 6. The Court also expressed difficulty in appreciating why leave to appeal had been granted at all, let alone to the Supreme Court of Appeal, given the lack of merit in the appeal. The Court noted in passing that by the time of the hearing, the appellant had been afforded further legal aid and the trial had progressed to the stage where the State had closed its case. The Court found the appellant's explanation for breaching bail conditions unconvincing and noted his denial of the correctness of Professor Edwards's diagnosis of him as a regressive paedophile, as well as his claim that his 1991 guilty plea resulted from poor legal advice, as 'hardly persuasive'.

This case demonstrates the strict application of Schedule 6 bail provisions under s 60(11)(a) of the Criminal Procedure Act 51 of 1977, particularly in cases involving repeat offenders. It confirms that where an accused has a previous conviction for the same type of offence, they bear the onus of proving exceptional circumstances on a balance of probabilities. The case illustrates that while lack of legal representation may be a factor in bail applications, it must be weighed against other considerations, particularly breach of previous bail conditions and untrustworthiness. It reinforces that breach of bail conditions is a serious matter that can justify continued refusal of bail. The case also affirms the Constitutional Court's decision in S v Dlamini upholding the constitutionality of s 60(11)(a).