Khumalo v Rex (339/2023) [2023] SZHC 633 (13 December 2023)

Criminal Law and Procedure - Bail - Section 95 and
Section 96 of The Criminal Procedure and Evidence Act 67/1938    (as        amended    considered    -    Exceptional circumstances    (point    zn   limine  taken)   -        Test for exceptional circumstances revisited - Section 96 of the CP&E places a burden or an onus on an Accused person to satisfy the court by way of evidence and on a balance of probabilities that exceptional circumstances exist which permits his release on bail. What places the charge that the Applicant has been charged with under the fifth · schedule is robbery using a firearm. It is common cause that there was no firearm that was found by the police with the Applicant. There is also no affidavit from any of the complainants stating that there are submission when they were robbed was induced through the use of a firearm. The Applicant is a civil servant. He has been in custody now close to 5 (five) months. His continued incarceration risks his employment. In my view this fits as exceptional circumstances in this case. Especially when the rights of the Accused in respect of liberty are balanced with the risk of undermining the proper functioning of the criminal justice system.