CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT ... - saflii

ACKERMANN AND GOLDSTONE JJrefused to release Coetzee on bail an objective test must be applied, and that theevidence of the magistrate who happened to have been seized with the matter isneither relevant nor admissible. On this approach the court would have regard to thelaw as it should have been applied by a reasonable magistrate on the facts given tohim by the prosecutor. The question of causation, in the event of the conduct of eitherthe police or the prosecutors being unlawful, was not considered by the High Court orthe SCA. This too is a complex issue that may ultimately depend on the facts as theyemerge at the end of the case.[77] Not having the benefit of the views of the High Court or the SCA, or argumentfrom counsel in this Court on the admissibility of Von Bratt’s evidence, it is notdesirable that this Court should express a firm view as to either the proper test to beapplied in determining this issue or on the application of the correct test to the factsestablished on the applicant’s evidence. Nor in the light of the decision to which wehave come, is it necessary for us to do so. The evidence is in our view sufficient tojustify a conclusion that if bail had been opposed and if all relevant informationpertaining to Coetzee’s background and sexual problems had been placed before themagistrate, bail might have been refused. That is sufficient to put the respondents ontheir defence in relation to this issue.What Should this Court do in these Circumstances?48