Mzolisi Mkhangeli v The State

The applicant was convicted in 2017 in the High Court of murder and robbery with aggravating circumstances and sentenced to life imprisonment. He was granted leave to appeal. After conviction, the applicant struggled to obtain a transcribed record of the trial proceedings. On 8 June 2021, after lodging an application to compel the Minister of Justice and Constitutional Development (DoJ), the DoJ provided the transcribed record. However, parts of the record from 13-17 November 2017 and 29 November to 4 December 2017 were missing. Despite correspondence between the DPP and State Attorney's offices, the missing parts were not obtained. On 17 July 2024, the applicant instructed his legal representatives to lodge an application for bail pending appeal. The investigating officer revealed that the applicant had previously been granted bail in the district court but failed to appear on one occasion, resulting in a warrant for his arrest and a conviction for contempt of court. He was the only co-accused who remained detained until the High Court trial concluded due to this conduct.

• Whether exceptional circumstances existed to permit the applicant's release on bail pending appeal in terms of section 60(11)(a) of the Criminal Procedure Act
• Whether the interests of justice permit the release of a convicted prisoner on bail pending appeal in terms of section 321 of the CPA
• Who bears the responsibility for reconstructing missing parts of a trial record
• Whether delay in obtaining a complete trial record constitutes exceptional circumstances justifying bail
• Whether the applicant posed a flight risk that would undermine the objectives of the criminal justice system

The application for bail pending appeal was dismissed.

After conviction, the presumption of innocence no longer applies in bail proceedings. For bail pending appeal in schedule 6 offences, the applicant must establish on a balance of probabilities both exceptional circumstances and that the interests of justice permit release (section 60(11)(a) CPA). The ultimate responsibility to ensure a complete and proper appeal record lies with the appellant, especially where represented. When a trial record is incomplete or missing, both the state and appellant share the duty to reconstruct it, but the final responsibility rests with the appellant and their legal representatives. Where substantial blame for delay in reconstructing a trial record can be attributed to the applicant's failure to take reasonable available steps (such as engaging the trial judge for reconstruction), this does not constitute exceptional circumstances justifying bail. Previous conduct demonstrating failure to comply with bail conditions (absconding) is a relevant factor indicating flight risk and undermining of the criminal justice system.

The court noted that exceptional circumstances are not statutorily defined and must be determined based on the specific facts of each case. The court observed that reasonable prospects of success on appeal should not be considered in isolation when determining eligibility for bail pending appeal. The court emphasized that victims are also at the center of the criminal justice system and their interests must be considered alongside those of the convicted prisoner when deciding bail applications. The court referenced that various reconstruction procedures have been approved by courts, including inviting parties to reconstruct in open court or having the clerk reconstruct based on affidavits from parties and witnesses, with confirmatory affidavits from the accused and reports from the presiding judicial officer.

This case reinforces important principles in South African criminal procedure regarding bail pending appeal after conviction. It clarifies that the duty to reconstruct missing portions of a trial record does not fall entirely on the state or court, but is shared by the convicted appellant and their legal representatives, who bear the ultimate responsibility to ensure the appeal record is in order. The case demonstrates the high threshold for bail pending appeal in schedule 6 offences, particularly where the applicant has a history of absconding. It illustrates that incomplete records alone do not automatically constitute exceptional circumstances, especially where the delay in reconstruction can be attributed to the applicant's own failure to take available steps. The judgment also emphasizes that bail proceedings are inquisitorial in nature, allowing courts to acquire information informally to make proper determinations.