Makobalo v S

The appellant, an 18-year-old matric scholar, and four co-accused were charged with attempted murder under Schedule 5 of the Criminal Procedure Act. On 9 February 2024, the complainant accused the appellant of stealing a phone at a party. After an exchange of words, the complainant slapped the appellant, and the appellant threatened: 'Monday, you will see blood.' On 12 February 2024, the appellant's co-accused waited for the complainant outside school and attacked him, resulting in a swollen brain, skull fracture, and brain bruising. The appellant threw a brick at the complainant after the group had left. Accused 4 posted a video on social media intimidating witnesses. The appellant's bail was denied in the Goodwood Magistrate's Court on 14 March 2024, and he remained in custody since 14 February 2024.

• Whether the learned magistrate's decision to deny bail was wrong, warranting interference by the High Court under section 65(4) of the Criminal Procedure Act.
• Whether the appellant discharged the onus to show on a balance of probabilities that the interests of justice permitted his release, as required by section 60(11)(b) for Schedule 5 offences.
• Whether the magistrate properly considered the individual role and personal circumstances of the appellant, as opposed to treating all accused collectively.
• Whether the magistrate adequately fulfilled the duty under section 60(3) to obtain sufficient information before deciding the bail application.

The appeal was upheld. The appellant was admitted to bail of R5,000 with conditions: no contact with state witnesses; weekly reporting to the local police station; no social media posts related to the case; and prompt attendance at all court proceedings.

In a bail appeal under section 65(4) of the CPA, the High Court may only interfere if satisfied that the lower court's decision was wrong. For Schedule 5 offences, the accused bears the onus to adduce evidence showing on a balance of probabilities that the interests of justice permit release. The interests of justice require individualised consideration of each accused's role and personal circumstances; a failure to distinguish between co-accused and to properly obtain sufficient information about personal circumstances, particularly of youthful offenders, may render the decision wrong.

The court emphasised that an accused should not be penalised for opting to submit evidence in bail proceedings via affidavit rather than oral testimony. The court noted that when standardised bail application forms are used, especially for young accused persons, the court ought to engage further to obtain clarity on personal circumstances. The court also observed that the appellant's loss of six months of schooling was not in the interests of justice.

This case reinforces the principle that courts in bail proceedings must individually assess each accused's role and personal circumstances, rather than collectively attributing the conduct of co-accused. It underscores the duty of presiding officers under section 60(3) of the CPA to proactively seek sufficient information, especially where youthful offenders use standardised affidavits. It also illustrates the application of the 'interests of justice' standard under section 60(4)-(9) in Schedule 5 matters, following S v Dlamini.