Robert Green and Bheki Mashaba v The State

The two appellants were charged in the magistrate's court for the regional division of Mpumalanga with robbery with aggravating circumstances involving the use of firearms. On 9 September 2005, they allegedly assaulted four persons and robbed them of R7,276,150 using firearms. The second appellant was the security manager at the place where the robbery occurred. Initially two co-accused, Makhakula and Nkosi, were charged but the State withdrew charges against them, indicating they would likely be State witnesses. These two individuals claimed they had been assaulted and forced to make false statements implicating the appellants. The appellants applied for bail and testified that they would stand trial, not interfere with witnesses, and not commit offences. The investigating officer, Superintendent Molapo, testified about evidence linking the appellants to the robbery, including: fingerprints of the first appellant on the getaway vehicle, closed circuit television (CCTV) footage allegedly showing the first appellant driving the getaway vehicle and the second appellant arriving early and interacting with security officers who later helped the robbers, and various other circumstantial evidence. The magistrate refused bail, finding no exceptional circumstances. The defence attorney's cross-examination substantially discredited much of Superintendent Molapo's evidence, but the State refused to provide access to the CCTV footage or police docket. The High Court (Bosielo J) dismissed the appellants' appeal.

• Whether the magistrate erred in refusing bail based on unverified evidence from the investigating officer without requiring production of readily available evidence such as CCTV footage and fingerprint statements
• Whether the court should have invoked section 60(3) of the Criminal Procedure Act 51 of 1977 to order production of reliable information necessary to reach a decision on bail
• Whether exceptional circumstances existed justifying the release of appellants charged with a Schedule 6 offence under section 60(11)(a) of the Criminal Procedure Act
• The extent of the court's inquisitorial powers and duty to actively seek reliable information in bail proceedings

The appeal succeeded. The order made by the High Court was set aside. The order made by the magistrate was set aside and replaced with: (1) No order on the bail application is made at this stage; (2) The State is ordered to grant the defense access to the video tapes and any statements made by the police fingerprint experts relating to the fingerprints of either of the appellants linking them with the crime.

Where a court hearing a bail application lacks reliable and important information necessary to reach a decision, and such information is readily available, the court has no discretion but must invoke section 60(3) of the Criminal Procedure Act 51 of 1977 and order that such information or evidence be placed before the court. In bail proceedings, which are unique judicial functions, the inquisitorial powers of the presiding officer are greater than in ordinary criminal proceedings, and the court has a duty under section 60(10) to actively weigh the interests of justice rather than passively accept the parties' presentations. A court cannot make a final determination on bail for a Schedule 6 offense based solely on uncorroborated assertions of an investigating officer whose credibility has been substantially undermined in cross-examination, where the State has readily available evidence (such as CCTV footage and expert statements) that could verify or refute those assertions, and production of such evidence would not prejudice the State's case.

The Court noted that it could not assume the prosecutor's refusal to give defense access to the CCTV video could necessarily be explained on the basis that Superintendent Molapo's evidence was false, as it was possible the prosecutor had not seen the video. The Court also observed that an interlocutory decision refusing access to video tapes is subject to revision in light of subsequent events, such as the substantial demolition of the investigating officer's evidence. The fact that the earlier interlocutory decision was not attacked on appeal does not prevent reconsideration, as such an appeal would have been confined to the matter before the magistrate at that earlier stage and may well have been unsuccessful. The Court indicated it did not accept the appellants' submission that they should simply be released on bail without more, suggesting that after production of the required evidence, a proper determination could still potentially result in bail being refused if exceptional circumstances are not established.

This case is significant in South African criminal procedure law as it clarifies the mandatory nature of section 60(3) of the Criminal Procedure Act and the enhanced inquisitorial role of courts in bail proceedings. It establishes that courts do not have discretion to refuse invoking section 60(3) when they lack reliable and important information necessary to reach a decision on bail, particularly where such information is readily available. The case reinforces that bail hearings are unique judicial functions where the court's duty is more pro-active than in ordinary criminal proceedings. It also demonstrates that courts cannot rely solely on uncorroborated evidence from a witness whose credibility has been substantially undermined, especially when the State can easily produce documentary or physical evidence to verify the claims. The judgment emphasizes the balance between the State's entitlement to withhold access to its docket under section 60(14) and the court's duty to ensure it has reliable information to make a just determination on bail. It provides guidance on when production of evidence will not constitute a prejudicial 'dress rehearsal' for the State.