Kameni v S

The Appellant, a police officer stationed at Nyanga FCS, was arrested on 15 February 2023 as one of five accused facing multiple charges including Section 9(2)(a) of POCA, kidnapping, trafficking in persons, robbery with aggravating circumstances, attempted murder and contraventions of the Firearms Control Act. Two Bangladeshi nationals were kidnapped at gunpoint, detained, tortured and held for a ransom of R2 million. The State's case linked the Appellant to the crimes through his presence in a vehicle used to transport the hostages, cellphone records and vehicle tracking placing a SAPS vehicle in his possession near the crime scene, and evidence of him accessing the SAPS CAS system to obtain victim details. The Appellant applied for bail in the Bellville Magistrate's Court, but bail was refused on 17 July 2023. He appealed this decision to the High Court.

• Whether the Magistrate wrongly exercised her discretion in refusing bail to the Appellant under Section 60(11)(a) of the Criminal Procedure Act.
• Whether the Appellant discharged the onus of proving exceptional circumstances warranting his release on bail for Schedule 6 offences.
• Whether the presumption of innocence operates as a pre-trial right entitling an accused to bail in Schedule 6 matters.
• Whether the State established a prima facie case against the Appellant.
• Whether the interests of justice permit the Appellant's release on bail in terms of Section 60(4) of the CPA.

The appeal against the refusal of bail is dismissed.

In Schedule 6 bail applications, the accused bears the onus under Section 60(11)(a) of the CPA to prove on a balance of probabilities that exceptional circumstances exist which, in the interests of justice, permit release. The presumption of innocence is a trial right under Section 35(3) of the Constitution, not an operative pre-trial right in bail proceedings. To successfully challenge the merits of the State's case, an applicant must go beyond mere denials and prove on a balance of probabilities that they will be acquitted. Personal circumstances that are commonplace do not constitute exceptional circumstances for purposes of Section 60(11)(a).

The court observed that matters invoking provisions of POCA require a wider lens because the definition of 'gang' comprises individual members operating in synergy to achieve an overall purpose in the execution of a crime. The court further noted that courts dealing with POCA-related crimes are enjoined to consider bail within the nature, context, purport and objectives of POCA, which underscores the Bill of Rights and affirms democratic values of human dignity, equality and freedom.

This case provides important guidance on the interpretation of Section 60(11)(a) of the CPA regarding Schedule 6 bail applications, particularly in matters involving POCA charges. It confirms that the presumption of innocence does not operate as an automatic entitlement to bail and clarifies that an applicant must prove more than ordinary personal circumstances to establish exceptional circumstances. It also emphasises that organised crime matters require courts to view the evidence through a wider lens, recognising the synergistic nature of criminal gang activities.