Mahlathi v S

The applicant, Mr Mahlathi, together with co-accused, was charged with five counts of murder, one count of attempted murder, and one count of possession of an unlicensed firearm and ammunition. On 20 June 2020, the five deceased and others were playing television games at a residence in Philippi East when the applicant and others arrived to confront them about an earlier accident. Some of the accused were armed with firearms, fired shots, killing five persons and injuring one who survived. It was alleged the applicant belongs to a group called '2C' involved in fighting, robbing, and extorting the community. The applicant was arrested in November 2020 in Queenstown, Eastern Cape, after a tracing operation. A previous murder charge against the applicant (Philippi East CAS 101/07/2018) was withdrawn in February 2020 after eye witnesses were killed. A key witness (Mr X) who was allegedly approached about intimidation at the applicant's request was killed in June 2023. The applicant had previously abandoned bail applications in March 2021 and February 2023.

• Whether the applicant had adduced evidence satisfying the court that exceptional circumstances exist which in the interests of justice permit his release on bail, as required by section 60(11)(a) of the Criminal Procedure Act 51 of 1977.
• Whether there was a likelihood that the applicant, if released on bail, would endanger the safety of the public or commit a Schedule 1 offence (section 60(4)(a)).
• Whether there was a likelihood that the applicant would attempt to evade trial (section 60(4)(b)).
• Whether there was a likelihood that the applicant would attempt to influence or intimidate witnesses (section 60(4)(c)).
• Whether the cumulative effect of the applicant's personal circumstances and the delays in finalising the matter constituted exceptional circumstances.

Bail is denied. The applicant remains in custody pending trial.

In a Schedule 6 bail application, the accused bears the onus to prove, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit release. The court must weigh the liberty interest of the accused against the interests of society, without over-emphasising the presumption of innocence. Personal circumstances that are unremarkable, when considered cumulatively with other factors such as the strength of the State's prima facie case, evidence of witness interference, flight risk, and the seriousness of the offence, do not necessarily constitute exceptional circumstances justifying bail.

The court noted that while there was no direct evidence linking the applicant to the death of witness Mr X, it could not ignore the coincidence that witnesses in both the current and previous matters had been eliminated. It also observed that the indictment suggested other co-perpetrators remain at large, which, in the context of alleged gang affiliation, was relevant to witness interference risk. The court remarked that the delay in the applicant bringing the bail application was his own decision and that if he had done so earlier in 2021 or 2023, he may have had an outcome sooner.

The case illustrates the stringent requirements for bail in Schedule 6 offences (serious crimes like multiple murders with firearms). It demonstrates how courts weigh the presumption of innocence against societal interests, particularly in cases involving alleged gang activity, witness elimination patterns, and community fear. The judgment affirms that systemic delays in the criminal justice system do not automatically constitute exceptional circumstances for bail release.