S v Lenting and Others

The accused, Elton Lenting and 19 others, faced various charges including Murder (count 75), Attempted Murder (count 76), possession of an unlicensed firearm (count 77), and unlawful possession of ammunition (count 78). During the trial, the State sought to introduce the records of bail proceedings held on 8 July 2015 at the Bellville Magistrates Court, where accused 3 and accused 14 had testified in support of their bail applications. At the bail hearing, accused 3 denied the charges, admitted to being a former member of the Firm Boys gang, stated he had repented and was attending church, and acknowledged having Firm Boys gang tattoos. Accused 14, who was 16 years old at the time of the bail proceedings, also testified, denied the charges, claimed he was in hospital when the murder occurred, admitted to being a former member of the Terrible Josters gang, and acknowledged having one Terrible Josters tattoo. Crucially, the magistrate presiding over the bail proceedings failed to warn either accused, as required by section 60(11B)(c) of the Criminal Procedure Act, that anything they said could be used against them at their subsequent trial and that such evidence would become admissible in any subsequent proceedings. Both accused were denied bail. The State sought to admit these bail records as exhibits in the trial, while the legal representatives for accused 3 and 14 objected, arguing that admitting the records would infringe upon the accused's rights to a fair trial.

• Whether the failure by a bail court to warn an accused person in terms of section 60(11B)(c) of the Criminal Procedure Act automatically renders the bail record inadmissible at the subsequent trial.
• Whether the admission of the bail proceedings records against accused 3 and accused 14 would render their trial unfair in violation of their constitutional right to a fair trial under section 35(3) of the Constitution.
• Whether a trial court has a discretion to admit or exclude bail proceedings evidence where the section 60(11B)(c) warning was not given, and what factors guide the exercise of that discretion.
• Whether the additional protections under the Child Justice Act 75 of 2008 imposed a higher duty on the bail court when dealing with accused 14, who was a child at the time of the bail proceedings.
• Whether the duty to warn an accused in terms of section 60(11B)(c) is a judicial function that can be delegated to the accused's legal representative.

The State's application for the admission of accused 3's bail proceedings record was granted. The State's application for the admission of accused 14's bail proceedings record was dismissed.

The duty imposed by section 60(11B)(c) of the Criminal Procedure Act to warn an accused that anything said during bail proceedings may be used against them at trial rests with the court and is a non-delegable judicial function. However, failure to give this warning does not automatically render the bail record inadmissible; the trial court must exercise a discretion to determine whether admitting the evidence would render the trial unfair, guided by section 35(5) of the Constitution. Where an accused was a child at the time of the bail proceedings, the Child Justice Act imposes heightened obligations on the presiding officer to ensure the child understands their rights and that the best interests of the child are upheld; failure to comply with these protections, including the section 60(11B)(c) warning, will render the admission of the bail record unfair and inadmissible.

The court observed that even where a bail court has timeously warned an accused in terms of section 60(11B)(c), such evidence is not automatically admissible at the subsequent trial; a trial court may still exclude otherwise admissible evidence if it would render the trial unfair, in order to protect the accused's right to a fair trial, citing S v Basson 2005 (1) SACR 611 (CC). The court further noted that an accused who testifies at a bail application retains the privilege against self-incrimination and may decline to answer incriminating questions, though doing so risks bail being refused. The court also expressed doubt as to whether the bail court properly admonished the child offender (accused 14) as required by sections 162 to 164 of the CPA, noting that these provisions apply with equal force in bail proceedings, despite bail proceedings being less formal than a trial. Additionally, the court emphasised that any court applying the CJA when dealing with a child in conflict with the law is a de facto child justice court, and that the duty to inform a child of allegations and explain procedures cannot be delegated to a legal representative.

This case clarifies the operation of section 60(11B)(c) of the Criminal Procedure Act regarding the admissibility of bail proceedings records at subsequent trials. It affirms that the duty to warn an accused is a non-delegable judicial function that cannot be outsourced to legal representatives. It also establishes that the failure to warn does not automatically exclude the evidence but requires a trial court to conduct a fairness inquiry under section 35(5) of the Constitution. Importantly, the judgment highlights the intersection between the CPA and the Child Justice Act, demonstrating that child offenders are entitled to enhanced procedural protections during bail proceedings and that failure to comply with these protections — including proper admonishment and explanation of rights — will justify the exclusion of bail evidence to protect the child's right to a fair trial.