Mark Scott-Crossley v The State

The appellant was convicted of the murder of Simon Chisale and sentenced to life imprisonment. He was charged with a planned or premeditated murder as defined in Part 1 of Schedule 2 read with s 51(1)(a) of Act 105 of 1997. After unsuccessfully applying for leave to appeal from the trial court, leave was subsequently granted by the Supreme Court of Appeal. The appellant then applied for bail pending appeal, which was dismissed by the court a quo. He appealed as of right to the Supreme Court of Appeal to be released on bail. The appellant's version was that he returned to the farm at 22h30 and found the deceased already dead. He, together with co-accused and Robert Mnisi, conveyed the deceased's body to the Mokwalo White Lion Camp and threw it over the fence into the lion camp to prevent authorities from discovering a crime of culpable homicide. The State's evidence, accepted by the trial court, was that the deceased was still alive when thrown to the lions. The appellant was sentenced on 13 September 2005.

• Whether exceptional circumstances existed to justify the granting of bail pending appeal in terms of s 60(11)(a) of the Criminal Procedure Act 51 of 1977
• Whether the mere fact that leave to appeal was granted constitutes exceptional circumstances
• Whether reasonable prospects of success on appeal amount to exceptional circumstances
• What standard of proof applies to a convicted person seeking bail pending appeal for a Schedule 6 offence

The appeal was dismissed. The court a quo's decision to refuse bail pending appeal was upheld.

A person who has been found guilty of a Schedule 6 offence and been sentenced cannot claim the benefit of a lighter test than that imposed on unconvicted persons by s 60(11)(a) of the Criminal Procedure Act 51 of 1977. The mere fact that a sentenced person has been granted leave to appeal does not constitute exceptional circumstances as required by s 60(11)(a). Prospects of success on appeal, even if reasonable, do not in themselves amount to exceptional circumstances - the court must consider all relevant factors and determine whether individually or cumulatively they constitute exceptional circumstances which would justify release. When evaluating bail pending appeal, the court should not extensively analyze the evidence as this would constitute a dress rehearsal for the appeal and might create an untenable situation for the court hearing the appeal on the merits. Where an accused has no prospect of avoiding a custodial sentence for a longer period than he will have served when the appeal is heard, this weighs against the granting of bail pending appeal.

The court observed that the approach to bail pending appeal in respect of serious offences has become less lenient and less liberty-oriented in the last decade as a consequence of the new bail dispensation ushered in by Acts 85 of 1997 and 34 of 1998, the constitutionality of which was settled in S v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC). The court noted that the majority of cases dealing with prospects of success as a factor in bail pending appeal were decided before this new dispensation. The court commented that on the appellant's own version he committed a "callous and heinous crime" by throwing a dead body into a lions' den to prevent discovery of a culpable homicide. The court noted that counsel conceded there was only a reasonable possibility (not probability) that any sentence might be in terms of s 276(1)(i) of the Criminal Procedure Act.

This case clarifies the stringent test for bail pending appeal in cases involving Schedule 6 offences under s 60(11)(a) of the Criminal Procedure Act. It establishes that the mere granting of leave to appeal does not constitute exceptional circumstances and that convicted persons face the same rigorous test as unconvicted persons charged with Schedule 6 offences. The case demonstrates the less lenient approach to bail pending appeal for serious offences following the constitutional validation of the stricter bail dispensation in S v Dlamini and others 1999 (2) SACR 51 (CC). It illustrates the practical application of the Bruintjies test and emphasizes that courts must consider all relevant factors cumulatively rather than focusing solely on prospects of success.