Robertson Khulekani Koti and Others v The State

Three applicants appeared before a Regional Magistrate charged with robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act. The allegations were that they went to the complainant's home armed with a pistol, threatened the maid with the pistol, and made off with property, most of which was later recovered. The applicants pleaded not guilty, offering a defence of claim of right. After the state closed its case having called five witnesses, the applicants invoked section 70(1)(i) of the Constitution, choosing to remain silent and arguing they could not be compelled to testify. The trial court ruled they could still be cross-examined, whereupon the applicants sought referral to the Constitutional Court to determine the constitutionality of section 198(9) of the Criminal Procedure and Evidence Act. The matter was referred to the Constitutional Court, and the applicants then applied for bail pending the conclusion of their trial.

• Whether bail should be granted pending trial where the trial has substantially progressed with state evidence complete
• Whether the strength of the state's case affects bail considerations for a Third Schedule offence
• Whether exceptional circumstances exist to justify release on bail in the interests of justice
• The application of section 50(1)(d) of the Constitution to bail applications after court appearance
• The balancing of the presumption of innocence against the interests of justice in bail pending trial applications

The application for bail was refused.

Where an accused person facing a Third Schedule Part I offence applies for bail after the state has closed its case at trial, and the evidence on record demonstrates a strong probability of conviction with severe penalties likely to follow, the court is entitled to assess the strength of the state's case from the trial record. In such circumstances, the interests of justice in ensuring the proper and orderly administration of justice, including preventing abscondment, outweigh the presumption of innocence and the preference for liberty. The trial court, being seized with the matter and having lived through the evidence, is best positioned to assess whether bail should be granted. Where the probability of conviction is very high and the potential sentence severe, coupled with a real risk of abscondment, exceptional circumstances are not established and bail should be refused to allow the trial to run its course.

The court made observations about the interpretation of section 50(1)(d) of the Constitution, noting that a reading of this provision suggests it refers to persons arrested and detained in police cells before appearance in court, rather than to persons already appearing in court seeking bail. However, Kabasa J expressly refrained from delving deeply into this interpretation as counsel had not been afforded opportunity to address the court on the applicability of this provision in the context of bail applications after court appearance. The court also observed that the pending constitutional challenge regarding the right to remain silent and section 198(9) of the Criminal Procedure and Evidence Act was unlikely to change the complexion of the state's case, as the evidence already led was strong enough regardless of whether the applicants would be subjected to cross-examination.

This case is significant for establishing the approach to bail applications where criminal trials have substantially progressed, particularly for serious Third Schedule offences. It clarifies that courts can properly assess the strength of the state's case based on evidence already led, and that where a trial is near completion with strong evidence suggesting likely conviction and severe penalty, the interests of justice favor allowing the trial to proceed without interruption rather than granting bail. The judgment reinforces that the stage of proceedings is a material factor in bail determinations, and that the presumption of innocence, while important, must be balanced against practical considerations of trial management and the administration of justice where trials are ongoing.