Johnson v S

The appellant, Nicole Johnson, was arrested on 29 September 2023 along with her husband and two other persons. On 2 October 2023, she made her first appearance in the court a quo. On 9 October 2023, all accused applied for bail. The bail application fell within Schedule 5 of the Criminal Procedure Act as they were charged with contravening section 9(1) of the Prevention of Organized Crime Act, theft of a motor vehicle (value exceeding R100,000), and fraud. Johnson presented an affidavit in support of her first bail application. The state opposed bail, presenting an affidavit by the investigating officer. On 30 October 2023, the court a quo refused Johnson bail. Johnson filed a Notice of Appeal on 17 November 2023 but then brought a second bail application based on new facts, presenting viva voce evidence on 21 December 2023. This was also refused on 16 January 2024. The appeal was against both decisions refusing bail. The facts involved Johnson, along with co-accused, undertaking a 'manhunt' to locate a rogue employee who allegedly stole money. Johnson deceived Tracker by pretending to be Kelly Stuurman to locate a BMW vehicle, which was then removed. Johnson owned various businesses including two Sorbet beauty franchises and a petrol station co-owned with her husband. She claimed to be the only person who could change fuel prices at the petrol station, but this was proven false when the price was changed while she was in custody. She had also considered applying for business residency in Dubai and failed to disclose her full income including R70,000 monthly from Ayepep.

• Whether the court a quo failed to individualize Johnson's bail application from that of her co-accused
• Whether there was a likelihood Johnson would endanger public safety or commit a Schedule 1 offence if released on bail (section 60(4)(a) CPA)
• Whether there was a likelihood Johnson would attempt to evade trial if released on bail (section 60(4)(b) CPA)
• Whether there was a likelihood Johnson would interfere with witnesses or conceal/destroy evidence if released on bail (section 60(4)(c) CPA)
• Whether there was a likelihood Johnson would undermine the criminal justice system if released on bail (section 60(4)(d) CPA)
• Whether the new facts presented in the second bail application were truly new and relevant to the bail determination
• Whether Johnson discharged the onus under section 60(11)(a) of the CPA to show that her release on bail was in the interests of justice

The bail appeal is dismissed. Johnson has not discharged her onus to show that it would be in the interests of justice that she be released on bail.

In a Schedule 5 bail application under section 60(11) of the CPA, the accused bears the onus to show on a balance of probabilities that their release is in the interests of justice. Where facts are determined on paper via affidavits, the state's version must prevail unless it is improbable (following Killian v S). New facts for a renewed bail application must be facts discovered after the first bail application was heard and cannot merely be an elaboration of previously presented facts; they must be both new and relevant to the bail determination (following S v Petersen). An accused who demonstrates a pattern of dishonesty, deceptive conduct, and taking the law into her own hands is unlikely to respect the criminal justice system, and such conduct supports findings of likelihood under section 60(4)(a)-(d) of the CPA.

The court noted that the social worker's mandate was limited to determining whether the minor children were being cared for in the absence of their parents, and the social worker was not qualified or equipped to make a recommendation on bail. The court also observed that a holistic analysis of the evidence portrayed Johnson as a person who 'does what she needs to even if this means being deceptive and taking the law into her own hands', and that she does not hesitate to lie and give false evidence if she thinks it will benefit her.

This case reinforces the principles applicable to Schedule 5 bail applications and appeals against bail refusals under the Criminal Procedure Act. It clarifies that on appeal, the court may undertake its own analysis of the evidence (following S v Petersen). It also provides guidance on what constitutes 'new facts' for purposes of a renewed bail application, emphasizing that they must be both new and relevant, and not merely an elaboration of previously known facts. The case demonstrates how an accused's pattern of dishonesty and deceptive conduct in the underlying offence and in the bail proceedings themselves can support findings against granting bail across multiple section 60(4) grounds.