Would you grant Jub Jub bail?

Protea Court Soweto will once again be the focal point as the bail applications of hip-hop artist Molemo Maarohanye, known as Jub Jub, and co-accused Themba Tshabalala enter into their second day. They are currently being held on charges of murder and attempted murder.

These arise out of a horrendous incident which took place in Mdlalose Street almost a fortnight ago.

The allegations are that two Mini Coopers, then being driven by the pair, were racing along the two-way street which runs between Protea Glen and Protea North — with one in each lane but parallel to each other. A car approached from the opposite direction leaving the Mini on the wrong side of the road with no place to go. As a result the driver tried to swerve back into the left-hand lane but only managed to crash into the other Mini.

Both vehicles then ramped onto the pavement and mowed down four young boys who were walking home from school with two other friends. The youngsters aged between 17 and 19 were still in their school uniforms at the time. Police confirmed that four of the boys were killed while the other two are in a critical condition having sustained multiple fractures and head injuries. Three of the boys killed were from Jules High School in the Johannesburg CBD and one from Altmont High School in Protea North.

Understandably emotions are running extremely high in Soweto with police on Wednesday being forced to fire rubber bullets at protesters after they started banging and jumping onto the police vehicles that were parked outside the court with 5 schoolboys being arrested.

That tension will undoubtedly be carried into Thursday as the bail applications continue.

Vital to the public’s understanding of what is happening today is the fact that they comprehend that these are bail applications and not the trial where the guilt or innocence of the accused is determined.

Accordingly the primary question that falls to be decided is whether or not the pair presents a flight risk or will stand their trial.

In order to answer that — while taking other factors like the possibility of being killed by the public, chances of interfering with the witnesses or investigation into consideration — the presiding officer will need to hear evidence adduced by the applicants and the state, who are opposing bail, why it should or should not be granted.

In this regard the first thing that the magistrate needs to decide is what schedule these crimes fall under in terms of the Criminal Procedure Act 51 of 1977 as amended (the act).

As I am not aware of the two having committed previous crimes I will assume that for this bail application they are facing charges under Schedule 5, which is the usual schedule for the crimes with which they are being charged unless other factors come into play.

The importance of this is that Section 60(11) (b) of the Act provides that where the accused is charged with a Schedule 5 offence the onus lies with the state. The ordinary burden of proof that the interest of justice would be best served by the continued detention of the accused remains with the state until such time as it has shown the offence with which the accused is charged to be one that falls within Schedule 5. The state may discharge this burden by giving a full and proper description of the alleged offence in the charge or by leading evidence or by resorting to a certificate from the director of public prosecutions in terms of section 60 (11A) of the Act.

If it is a Schedule 6 that changes in terms of Section 60(11) (a) of the Act which provides that where the accused is charged with an offence which falls within Schedule 6, he carries the burden of satisfying the court on a balance of probabilities that “exceptional circumstances exist” which permits his or her release on bail, in the interest of justice.

The likelihood here is that these are Schedule 5.

Section 50 of the Act is the one that the public are familiar with in that it deals with the provisions requiring the state to bring the suspects before court within 48 hours and the fact that they are entitled to apply for bail.

Section 60 of the Act is the one that is critical for our purposes because it sets out what the parties to the bail application have to establish in order for bail to be achieved or denied ie the factors the magistrate will take into account when making his decision.

Section 4 gives the overall outline but in order to gain a full understanding regard must be had to the act, prevailing legislation and case law which has interpreted the acts.

(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

(a) Where there is the likelihood that the accused, if he or she were released on bail, will
endanger the safety of the public or any particular person or will commit a Schedule 1
offence.

(b) Where there is the likelihood that the accused, if he or she were released on bail, will
attempt to evade his or her trial.

(c) Where there is the likelihood that the accused, if he or she were released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy evidence.

(d) Where there is the likelihood that the accused, if he or she were released on bail, will
undermine or jeopardise the objectives or the proper functioning of the criminal justice
system, including the bail system.

(e) Where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.

Once the magistrate has heard all the evidence he will then decide whether the accused are entitled to bail in all the circumstances in accordance with the law and not whether the public like it or not.

That is why it is important to the police and the criminal justice system that the public understand that the people who are upholding the law are not being difficult or arrogant but rather — to the best of their ability — applying the rules of the legal system that society has entrusted to them.

Accordingly if Jub Jub and Tshabalala are released rather than throwing up your arms go through the reason for the decision and try to understand why it was done.

It has no impact on the trial to decide their guilt or innocence as far as the public is concerned.