Jason Thomas Rohde v The State

Jason Thomas Rohde was convicted of murdering his wife and obstructing the administration of justice by concealing the murder to make it appear as a suicide. He was sentenced to 20 years' imprisonment. The Western Cape Division of the High Court (Salie-Hlophe J) refused him leave to appeal his conviction on 16 April 2019. Rohde then applied to the Supreme Court of Appeal for a special entry and leave to appeal. On 2 July 2019, the SCA dismissed his application for special entry in terms of s 317 of the CPA but granted him leave to appeal against his conviction and sentence. Rohde then applied for bail pending his appeal, arguing that the grant of leave to appeal implied reasonable prospects of success. He claimed he was not a flight risk, his business interests would suffer if incarcerated, he had complied with all bail conditions prior to conviction, and he satisfied the requirements of s 60 of the CPA. The High Court dismissed the bail application, finding he was a flight risk and had not strictly complied with previous bail conditions. Rohde appealed this decision to the SCA.

• Whether the grant of leave to appeal is sufficient grounds to grant bail pending appeal
• Whether the appellant discharged the onus under s 60(11)(b) of the CPA to show that it is in the interests of justice to be released on bail pending appeal after conviction for a Schedule 5 offence
• What factors must be considered in determining whether a convicted person is a flight risk under s 60(6) of the CPA
• Whether the appellant was a flight risk given his multiple citizenships, expired passports, financial circumstances, and family ties

By majority decision (Maya P and Van der Merwe JA, with Nicholls JA dissenting), the appeal was upheld and the High Court's order was set aside. Bail pending appeal to the SCA was granted subject to conditions including: payment of R200,000 bail; furnishing of R1 million guarantee; residence at specified address in Plettenberg Bay; reporting to police station twice weekly; notification requirements for travel to Johannesburg or Cape Town; prohibition on applying for passports; and notification to South African Department of Home Affairs and British and Australian Embassies.

The majority held that for bail pending appeal after conviction for a Schedule 5 offence under s 60(11)(b) of the CPA, the applicant bears the onus of showing on a balance of probabilities that the interests of justice permit release. Key binding principles established: (1) Where leave to appeal has been granted on the merits (applying the S v Smith test of reasonable prospects of success), this is a significant factor indicating real prospects the conviction may be overturned. (2) In assessing flight risk under s 60(6) of the CPA, courts must consider all circumstances including: emotional and financial ties to South Africa; previous compliance with bail conditions; whether the State disputes that the applicant is a flight risk; and whether appropriate bail conditions (increased bail amount, passport prohibitions, reporting requirements, notifications to authorities) can adequately address any risk. (3) Where an applicant convicted of serious crimes has real prospects of success on appeal and is not a flight risk that cannot be managed by conditions, bail pending appeal should be granted on appropriate (enhanced) conditions. The minority view emphasized that post-conviction the presumption of innocence no longer applies; the severity of sentence creates real temptation to abscond; multiple citizenships and international mobility increase flight risk; and the onus remains on the applicant to show interests of justice favor release.

Nicholls JA made several significant observations: (1) Pre-trial bail allows an accused to maintain employment, family ties, and actively participate in defense preparation, underpinned by the presumption of innocence. Post-conviction, other considerations come to the fore. (2) The legislature's approach to bail has become less lenient over time, as reflected in amendments to the CPA, with a shift in focus from the accused to the community. (3) Courts cannot condone different rules for the rich and the poor in bail matters. (4) South Africa's borders are "notoriously porous" and those with financial means often evade justice for years. (5) If bail is to deter failure to serve sentences, the post-conviction amount should be considerably higher than pre-conviction bail. Van der Merwe JA noted that the 2015 Rugby World Cup passport incident (where the appellant left SA on an expired passport but was readmitted on his Australian passport) did not indicate flight risk. The judgment also noted that because no reasons are provided when leave to appeal is granted, courts cannot state categorically what the grounds were, though the applicable test (reasonable prospects or compelling reason under s 17(1) of the Superior Courts Act) is known.

This case illustrates the complex considerations in bail pending appeal applications after conviction for serious offences. It demonstrates the tension between: (1) the increased risk of absconding after conviction and sentencing to a lengthy term versus reasonable prospects of success on appeal; (2) the different approaches to assessing flight risk where an applicant has multiple citizenships and international ties; (3) the weight to be given to the grant of leave to appeal in bail applications; and (4) the application of s 60 of the CPA to post-conviction bail applications for Schedule 5 offences. The case shows that even with serious convictions, bail pending appeal may be granted where there are real prospects of success and flight risk can be adequately managed through conditions, though this remains a discretionary matter where judges may reasonably differ.