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[2021] ZAWCHC 100
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Killian v S [2021] ZAWCHC 100 (24 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: A87/2021
Before: The Hon. Mr Justice Binns-Ward
Hearing: 18 May 2021
Judgment: 24 May 2021
In the
matter between:
ZANE
JOHNATHAN KILLIAN
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Delivered by email to the parties’ legal representatives
and by release to SAFLII.
The judgment shall be deemed to have been handed down at 10h00 on
24
May 2021.)
BINNS-WARD J:
[1]
The appellant is charged with the murder of
Lieutenant-Colonel Charl Kinnear and various related offences.
Colonel Kinnear
was a senior officer in the police Anti-Gang Unit.
He was shot by an as yet unidentified assailant in his motor vehicle
when
arriving at his home on the afternoon of 18 September 2020.
In these proceedings the appellant comes on appeal from the decision
of the regional magistrate in the court below to refuse his
application for bail.
[2]
The principal charge faced by the appellant
is in respect of an offence listed in Schedule 6 of the
Criminal
Procedure Act 51 of 1977
. His application for bail therefore fell to
be adjudicated subject to
s 60
(11)(a) of the Act, which
provides as follows:
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to in Schedule 6, the court
shall order that
the accused be detained in custody until he or she is dealt with in
accordance with the law, unless the accused,
having been given a
reasonable opportunity to do so, adduces evidence which satisfies the
court that exceptional circumstances
exist which in the interests of
justice permit his or her release.
[3]
The effect of
s 60(11)(a)
was exhaustively
discussed and elucidated in the Constitutional Court’s seminal
judgment in
S v Dlamini; S v Dladla; S v
Joubert; S v Schietekat
[1999]
ZACC 8
(3 June
[1999] ZACC 8
;
1999); 1999 (2) SACR 51(CC).
It imposes
an
onus
on the applicant for bail to adduce evidence to prove
to the satisfaction of the court the existence of exceptional
circumstances
justifying his release on bail. The court must also be
satisfied that the release of the accused is in the interests of
justice.
The standard of proof is on a balance of probabilities.
[1]
[4]
The import of the ‘exceptional circumstances’
test
has been traversed in a number of judgments. In
S
v Jonas
1998 (2) SACR 677 (SE) at 678E-G it was
held that the term does not posit a closed list of circumstances.
Whether
a court may be satisfied that exceptional circumstances exist
depends on the facts and circumstances established in the given
application.
Whereas ‘
exceptional’
denotes
something ‘
unusual, extraordinary, remarkable, peculiar or
simply different
’ (see e.g.
S v Petersen
2008
(2) SACR 355
(C) at para [55]), it has been observed that ‘(s)
howing
“exceptional circumstances” for the purposes of
s 60(11)
of the CPA does not posit a standard that would render it impossible
for an unexceptional, but deserving applicant to make out
a case for
bail
’ (
S v Josephs
2001 (1) SACR 659
(C) at 668I and
S v Viljoen
2002 (2) SACR 550
(SCA)). They do not have
to be circumstances ‘
over and beyond and generically
different from those enumerated in
ss 60(4)
-(9)
’,
which are circumstances to which regard is had in run of the mill
bail applications not subject to the strictures of
s 60(11).
[2]
It is clear, however, that they must at least be compelling enough to
take the case made out for the granting of bail beyond
the ordinary.
[5]
A court determining a bail application affected
by
s 60(11)
is
required to consider the conspectus of evidence and decide whether it
is sufficient to persuade the court that an exception
should be made
to the default situation, which is that an accused person detained on
for trial on a Schedule 6 offence should remain
in custody pending
the outcome of the criminal proceedings.
[3]
This involves the court in having to make a value judgment
(‘waarde-oordeel’); cf.
S v Botha en ’n
Ander
2002 (1) SACR 222
(SCA) at para 19.
[6]
Section 60(4)
sets out a list of circumstances in which it would not
be in the interests of justice to grant bail to an accused person.
The subsection provides as follows:
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; or
(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; or
(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; or
(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; or
(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.
Subsections
60(5) to (10) provide guidance on what factors should be taken into
account when considering the factors set out in
section 60(4).
[7]
It is evident from the result of the bail application that the
court a quo was not satisfied that the appellant had discharged the
onus of satisfying it that there were exceptional circumstances that
in the interests of justice justified his release on bail.
In
terms of
s 65(4)
of the
Criminal Procedure Act, this
court may
not set aside the regional magistrate’s decision unless it is
satisfied that it was wrong.
[4]
When it comes to the import of
s 65(4)
, the observation of
Hefer J in
S v Barber
1979 (4) SA 218
(D) at 220E-H is
often cited.
[5]
In that matter the learned judge said ‘
It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly,
although this Court may have a different view, it should
not substitute its own view for that of the magistrate because that
would
be an unfair interference with the magistrate's exercise of his
discretion. I think it should be stressed that, no matter what this
Court's own views are, the real question is whether it can be said
that the magistrate who had the discretion to grant bail exercised
that discretion wrongly.
’
[8]
As I pointed out in
S v Porthen and Others
2004 (2) SACR 242
(C), however, certainly in respect of bail applications governed by
s 60(11)
, in which the bail applicant bears a formal onus of
proof, the nature of the discretion exercised by the court of first
instance
is of the wide character that more readily permits of
interference on appeal than when a true or narrow discretion is
involved.
[6]
I concluded (at para 15) ‘
Accordingly, in a case like the
present where the magistrate refused bail because he found that the
appellants had not discharged
the onus on them in terms of
s
60(11)(a)
of the CPA, if this court, on its assessment of the
evidence, comes to the conclusion that the applicants for bail did
discharge
the burden of proof, it must follow (i) that the lower
court decision was ‘wrong’ within the meaning of
s 65(4)
and (ii) that this court can substitute its own decision in the
matter
’. That analysis was most recently endorsed in
a decision of the full court of the Gauteng (Johannesburg) Division
of
the High Court in
S v Zondi
2020 (2) SACR 436
(GJ) at para
11-13.
[9]
The appellant chose to bring his
application for bail by means of an affidavit and the state responded
with answering affidavits.
Each side in effect submitted two
sets of affidavits. In the result the court a quo was called
upon to determine the bail
application on what were in substance
motion proceedings. I question whether it is wise or desirable
for a party bearing
a formal onus to seek to discharge it by adducing
its evidence on paper, especially when the evidence is likely to be
challenged
or disputed, as was the case in the current matter.
[10]
The difficulty may be illustrated by
reference to a single but important aspect of the evidence in the
current matter. The
appellant averred that when the police
descended on him after the shooting of Colonel Kinnear he had
informed them that he had
been tracking the deceased at the instance
of a certain Mr Mohammed, whom the appellant understood wished to
recover a vehicle
from the person he had been asked track. The
police, on the other hand, testified, also on affidavit, that the
appellant
gave a variety of mutually inconsistent explanations for
his tracking activities.
[11]
Neither side applied to offer oral evidence
in support of its version or to cross-examine the deponent to the
version in conflict
with its own. How was the court a quo to
deal with the conflicting evidence on paper?
[12]
In civil proceedings, there are rules to
deal with that sort of situation. In terms of the so-called
Plascon-Evans rule,
[7]
where final relief is sought on paper and there is a conflict on the
facts, the version asserted by the respondent prevails unless
it is
obviously far-fetched or untenable. The rule operates in that
manner irrespective of incidence of the onus.
[8]
Where interim or interlocutory relief is sought, the court makes a
determination on the probabilities as they appear from
the papers.
[13]
Bail applications are sui generis. To
an extent they are inquisitorial and, in general, there is no
prescribed form for introducing
evidence at them. But in cases
where
s 60(11)
applies and there is consequently a true onus on
the applicant to prove facts establishing exceptional circumstances,
an applicant
would be well advised to give oral evidence in support
of his application for bail. This seems to me to follow,
because -
differing from the position in which the Plascon-Evans rule
is applied – the discharge of the onus is a central
consideration
in
s 60(11)
applications. If the facts are
to be determined on paper, the state’s version must be accepted
where there is a conflict,
unless the version appears improbable.
Reverting to the example in the current case used to illustrate the
proposition, the
probabilities are neutral on whether the appellant
gave the police a consistent explanation or various conflicting
ones.
Applying the approach I have just described, as I believe
it was bound to do in the circumstances, the court a quo was obliged
- if it chose not to exercise its power of its own accord to require
oral evidence
[9]
- to accept the police evidence on the point. The example given
was not chosen idly. Whether the accused supplied false
information at the time of his arrest or thereafter is a material
consideration in bail proceedings (see
s 60(8)(a)).
[14]
The appellant advanced his case for bail in
his supporting affidavit (
jurat
15 December 2020) on the following lines. He averred that the
only objective facts linking him with the murder of Colonel
Kinnear
was that he had pinged the cell phone of the deceased in order to
determine his location. He said that he had obtained
the
wherewithal to trace people from a certain Goldblatt from whom he
purchased the pings that he used for tracking purposes.
He had
subsequently discovered that some of the pings he had purchased had
disappeared from his account. When he complained
about that
they were replaced free of charge. He said ‘
it
is my respectful submission that other individuals were using the
same platform and code, therefore the record of this code cannot
link
me to the crime. The deceased is unknown to me. I live in
Gauteng and he used to live in the Western Cape
’.
The clear implication in that statement, read contextually with the
other content of the affidavit, was that someone
other than the
appellant must have used his code to ping Kinnear. The
statement had to be weighed contextually with other
evidence that I
shall describe presently that clearly linked the appellant to the
tracking of Kinnear over a period of time.
The appellant also
averred that there was CCTV footage showing that he was in a pharmacy
in Springs at the time that Kinnear was
shot in Bishop Lavis, Cape
Town, but that was of no significance because it was not suggested by
the State that the appellant had
been the shooter.
[15]
The appellant testified that he had a fixed
residential address from which he worked as a debt collector earning
an average of R20 000
per month. He has two young
children, one of whom is autistic and has special needs. The
child with ‘high functioning
autism’ has taken the
appellant’s incarceration badly and is reported to have had
‘some severe meltdowns as a
result of [the appellant’s]
absence’.
[16]
The appellant averred that he suffers from
bi-polar disorder and requires medication. He said that he had
forgotten that he
possessed a passport until his memory was jogged by
the content of an affidavit by Captain Joubert (an apparent reference
to an
affidavit by Joubert,
jurat
3 March 2021, opposing bail, which the appellant must have been given
in draft before he made his bail application). He said
that he
had obtained the passport for the purpose of travelling on a rugby
tour, but had actually never used it.
[17]
He averred that he had no previous
convictions. He undertook not to influence or intimidate any
witnesses or to conceal or
destroy any evidence and stated that he
would attend his trial. He denied that his release on bail
would prejudice the public
order. He indicated that he would be
able to afford to pay bail fixed in the sum of R5000.
[18]
The state filed affidavits by Captains
Pieter Joubert and Edward du Plessis as evidence in support of its
opposition to the bail
application.
[19]
Captain Joubert is attached to the
Directorate for Priority Crimes (‘the Hawks’) in the
National Priority Violent Crimes
Unit, Organised Crime. He is
the investigating officer in the Kinnear murder.
[20]
Captain Joubert testified that Colonel
Kinnear had been attached to the Western Cape Anti-Gang Unit and at
the time of his killing
was involved in ‘
several
high profile investigations featuring well-known underworld gang
members ... as well as alleged police corruption matters
’.
[21]
He described how investigations had led the
police to a cellular and data analytics company based in Gauteng that
was able to carry
out location-based station tracking of cellular
devices. The method used is referred to colloquially as
‘pinging’.
It was established that the appellant
had pinged three different cellular telephone numbers used by Colonel
Kinnear on several
occasions between 20 April 2020 and the date of
Kinnear’s murder. One of the numbers had been pinged a
total of 2 408
times. On the date of the fatal shooting,
the pinging of Kinnear had commenced at 02h32 in the morning and
continued until
approximately 15h25. Colonel Kinnear was shot
at approximately 15h00. From about 13h20 the pinging was
repeated at
more or less 10-minute intervals, which increased in
frequency to approximately three-minute intervals from 14h35.
[22]
Captain Joubert deduced from the pattern of
pinging most proximate to the time of the shooting that it must have
been related to
the need to closely track the deceased’s
movement in the lead-up to his killing and was, in Joubert’s
opinion, part
of ‘meticulous planning’ to that end.
[23]
The appellant was arrested after initial
questioning. He was thereafter transferred in custody from
Gauteng to Cape Town.
During the journey to Cape Town, the
appellant confided to the police officers accompanying him details of
his connections to various
members of the Cape Town underworld.
Joubert stated that the appellant had confirmed this information in
writing on certain
signed notes that have been attached to his
warning statement. The notes were signed in Joubert’s
presence.
[24]
Captain Joubert testified that the
appellant had initially claimed to have acted on the instructions of
a certain ‘Mr Mohammed’
who had requested surveillance of
his (Mohammed’s) wife and a man with whom she was suspected to
be having an illicit affair.
The appellant told the police that
he would receive telephonic instructions to ping Kinnear’s
numbers and was remunerated
weekly by eWallet transfers into his bank
account. He said that Mohammed had told him on the day of
Kinnear’s murder
that the sheriff was ready to seize his wife’s
vehicle. He claimed to have pinged the number for the last time
between
12h00 and 13h00, and that thereafter, having heard nothing
further from Mohammed, he had assumed that the vehicle had been
successfully
seized.
[25]
Subsequent investigation showed that there
had been only seven eWallet transfers into the appellant’s bank
account and that
those had occurred between 29 January and 14 April
2020. On being confronted with that information, the appellant
changed
his story and confessed that the character he had referred to
as Mr Mohammed did not exist. He then admitted to having acted
on the instructions of a person that Captain Joubert was not willing
to name because of the sensitivity of the ongoing investigations
and
called only by the name ‘M X’. At the hearing
of the bail appeal, the identity of Mr X was disclosed
from the bar,
without objection, as a certain Mr Modack. The appellant is
currently arraigned in the Blue Downs regional
court on a number of
apparently related charges as a co-accused with Modack and various
other persons.
[26]
The appellant reportedly stated that about
90% of all the pinging that he did was on Modack’s (or as the
court a quo understood
it, Mr X’s) instruction. According
to Captain Joubert, the appellant admitted to being aware that some
of the targets
of his pinging were members of the police force.
He told Joubert that he had been led to believe that Mr X feared for
his
life from these police members and that he needed to know ‘
when
they were on their way to some of his
[Mr
X’s]
properties
’.
[27]
According to Captain Joubert, the appellant
had said that he did not know Kinnear or what he looked like.
It was, however,
ascertained from the information recovered from the
devices confiscated from the appellant that he had accessed a photo
identification
confirmation of Kinnear.
[28]
Joubert testified that investigations
undertaken using subpoenas authorised in terms of
s 205
of the
Criminal Procedure Act had
revealed that deposits totalling over
R5,25 million had been made into one of the appellant’s banking
accounts in the period
between 19 June 2019 and 26 September 2020.
[29]
It was also discovered that the appellant
had obtained a consumer trace report on one Timothy Lotter, who had
been shot and killed
on 6 January 2020 in a matter that at one stage
was being investigated by Colonel Kinnear. He had also pinged
the cellular
telephone number of an attorney, William Booth, 658
times between 6 March and 18 September 2020.
[30]
An attempt on Booth’s life, when
shots were fired at him in the garage at his residence on 9 April
2020, was given extensive
coverage in the media at the time. On
the day in question, the appellant had commenced pinging Booth’s
phone from 03h55
and continued doing so until about 45 minutes
after the shooting incident, which occurred at about 7h00. On
the day
following the attempt on Booth’s life, the appellant
obtained a consumer trace report on the attorney. The appellant
had declined to make a statement when invited to do so in respect of
the investigation into the attempted murder of Booth.
The
appellant maintained he did not know Booth.
[31]
The appellant had also pinged the cellular
telephone number of one Jerome Booysen, who was described by Joubert
as ‘
a well-known underworld figure
and alleged to be leader of the Sexy Boys gang
’,
between 6 March and 17 September 2020 on 193 occasions.
[32]
He had also pinged the phones of certain
other police officers who worked with Kinnear.
[33]
Captain Joubert expressed concern that
there was danger that the appellant would attempt to influence or
intimidate witnesses or
to conceal or destroy evidence if he were
released on bail. He testified that the appellant’s
conduct around the time
of his arrest supported his concern in this
regard. He referred in this regard to the evidence of a witness
who was at that
stage unidentified, but whose identity was revealed
in a later exchange of affidavits before the bail application was
heard as
one Bradley Goldblatt.
[34]
Mr Goldblatt made an affidavit on 21
October 2020. He testified that he ran the business that
provided the software to the
appellant that enabled the latter to
ping the cellular telephones of third parties.
[35]
Goldblatt testified that he had first met
the appellant in November 2018 when the appellant had approached him
to obtain a system
that would assist him in his business doing ‘bank
repossessions on vehicles’. Initially, the appellant
would
purchase 50 pings a month from Goldblatt’s business at a
monthly cost of R2100 (which translates to R42 per ping), and he
would generally not use that amount of pings during the period
concerned. Goldblatt also gave the appellant access, at a
fee
of R5000 per month, to Goldblatt’s account with Marisit Credit
Services, which is a consumer tracing business.
The appellant
was able to use the facility to undertake up to 100 searches per
month.
[36]
Goldblatt reported that the pinging system
was set up in such a way that he received an automatic alert if any
number was being
repeatedly pinged. On 1 September 2020, he
received an alert that indicated that the appellant was repeatedly
pinging certain
numbers. He audited the appellant’s
account and identified that the numbers being repeatedly pinged were
those of Colonel
Kinnear, that of another police officer in the
Anti-Gang unit, and that of Mr William Booth. His Google
searches on
the identified individuals and his perusal of some of the
online articles concerning them led Goldblatt to infer that the
appellant
was using the system for purposes related to ‘
a
Gang War
’. Goldblatt
consequently made contact with a police officer (whose name was
scratched through in the copy of the affidavit
in the court record)
to whom he provided the information that he had gathered.
[37]
Goldblatt said that on the day before
Colonel Kinnear’s murder the appellant had made frantic efforts
to contact him to purchase
additional pings. The appellant had
sent him 22 WhatsApp messages and made three missed calls to him for
this purpose.
After eventually making contact with Goldblatt,
the appellant purchased 100 hundred additional pings.
[38]
Goldblatt heard of Kinnear’s murder
late on 18 September 2020. He contacted the police officer to
whom he had earlier
provided the information concerning the
appellant’s activity to ask how it could have happened.
He was told that he
would be contacted by the investigating team.
[39]
Goldblatt further testified that on the
evening of 20 September he was telephoned by the appellant at
approximately 21h30.
The appellant told Goldblatt that his
house was swarming with 40 members of the Hawks who were confiscating
his handsets and laptops.
Goldblatt asked the appellant why the
Hawks were there. The appellant replied that there was
‘trouble’.
Goldblatt asked ‘What trouble?’,
to which the appellant replied that it did not matter but that
Goldblatt should listen
to him carefully. He then told
Goldblatt to delete all traces of him having used the pinging or
consumer tracing systems
to ‘
make
it look like he never used any of the systems
’.
Goldblatt reported the telephone conversation to the unnamed police
officer with whom he had been in contact since
3 September and
provided the officer with the telephone number from which the
appellant had called him.
[40]
Goldblatt stated that he had further
analysed the appellant’s usage of the services provided and
ascertained that the appellant
had obtained photo verification
reports in respect of Colonel Kinnear and Mrs Kinnear and an ‘auto
asset enquiry on William
Booth’. He also determined from
his analysis of the location based services ‘
with
regard to the data received on Lt Col Kinnear and Adv
(sic)
William Booth
’
(i) that ‘(t)
he amount of pings
done on both individuals indicates that a movement patter
(?n)
was established on the individuals
’,
(ii) that ‘(o)
n both incidents
[ie. the shootings]
the frequency and
the time the pings started was earlier as
(sic)
the other days (Just after 03:00
in the morning)
’, and (iii) ‘(o)
n
both incidents the pings stopped immediately after the shootings
’.
[41]
Captain du Plessis is also a member of the
investigating team in respect of the murder of Colonel Kinnear.
He analysed the
‘the official downloads’ from all the
handsets confiscated from the appellant. He was also able to
retrieve deleted
WhatsApp conversations and images and screengrabs
from the devices.
[42]
He determined that the appellant had
obtained a consumer tracing report that disclosed William Booth’s
residential address
on 10 March 2020 (a month before the attempt on
Booth’s life). The appellant had done a Google search for
Booth’s
work address on the same date. On the evening of
18 March, the appellant had done an exercise showing the time it
would take
to travel from the location at which Booth had been pinged
at an address in Vredehoek to Booth’s residence in Gardens,
Cape
Town. The information had been sent on to another WhatsApp
user.
[43]
Du Plessis gave details of the pinging by
the appellant of William Booth’s phone on the day of the attack
on the latter.
He advanced the following proposition based on
the information that his investigation had brought to light: ‘
Taking
all of this into consideration and the fact that the attack on the
life of William Booth happened on 9 April 2020, it is
clear that
[the
appellant]
knew who William Booth was at
the time of the incident and yet continued to ping the cell phone
number of Booth. The attack
on William Booth made national
headlines and was covered on television as well.
’
[44]
Captain’s Du Plessis’ analysis
of the information on the appellant’s handsets turned up quite
extensive information
that had a bearing on the investigation into
the murder of Colonel Kinnear.
[45]
The appellant had obtained consumer tracing
reports in respect of both Kinnear and Mrs Kinnear on 20 April 2020,
including photo
verification reports. These had been
transmitted by the appellant on the same day to another WhatsApp
user. That date
corresponded with the date on which the
appellant commenced pinging one of Kinnear’s telephone numbers.
[46]
It was clear that by the middle of May 2020
the appellant had obtained the particulars of four cellular telephone
numbers associated
with Kinnear and was aware that he was attached to
the police Anti-Gang Unit. It was established that during that
month the
appellant had tracked Colonel Kinnear while the latter was
on a working trip to Gauteng and had kept him under physical
surveillance
when Kinnear was staying at a guesthouse in Sandton.
A recovered WhatsApp conversation revealed that the appellant had
been
in contemporaneous communication with a third party concerning
the security measures for entry into the guesthouse property.
The investigation revealed that the appellant had also undertaken
physical tracking surveillance on Kinnear during another visit
by the
latter to Gauteng in June 2020.
[47]
Du Plessis’ affidavit gave
substantiated detail on a number of other tracking exercises done by
the appellant pinging Kinnear’s
phone, some of which were
connected with WhatsApp conversations between the appellant and a
third party suggesting that calculations
were being made as to the
timing of Kinnear’s anticipated arrival in Bishop Lavis from
wherever he was at the particular
time.
[48]
Du Plessis concluded on the Kinnear case as
follows (at para 29 -30 of his affidavit):
29.
On the date of Lt Colonel Kinnear’s murder, he was pinged on 35
occasions from 02:32
until 15:25 when he stopped pinging him. [The
appellant] stopped pinging him after 15:25. The accused completely
ceased all pinging
of the phone/s of Lt Col Kinnear approximately 15
minutes after the murder.
30.
Taking
all of this in consideration and the fact that the murder of Lt Col
Kinnear happened on 18 September 2020 it is clear that
[the
appellant] knew who Lt Col Kinnear was at the time of the
incident. The same modus operandi followed in the William
Booth
matter was also used to determine the estimate time of arrival of
Lt Col Colonel Kinnear to (sic) his Bishop Lavis home
from
different locations. I submit that the advantage of this
“intelligence gathering” is self-evident: it makes it
possible for a designated hitman to be informed, with a high degree
of certainty, that his target’s arrival at a predetermined
location is imminent. This allows the perpetrator an opportunity to
fully prepare himself ahead of time and to orchestrate his
own
timeous approach to the scene of the crime.
Put simply. [The appellant]
performed “intelligence gathering” by way of electronic
surveillance to best facilitate
the intended murder of Lt Col
Kinnear. In the commission of this crime the role played by [the
appellant] was integral. It was
not merely the supply of vague and/or
raw data; it was target specific and time sensitive. By way of
example: it would have been
easy to determine that Lt Col Kinnear was
settled inside his home at a certain stage based on his ping
location. That information,
although useful, is not critical to the
execution of the murder. It is certainly less desirable to attempt to
attack a policeman
inside his own home and/or to wait outside not
knowing exactly when the police member is going to step outside his
house. However,
[the appellant] delivered information that revealed
at what time the target would arrive at his house. Kinnear
would be at
his most vulnerable, seated behind the wheel of his
vehicle. An easy target.
[49]
Du Plessis also placed a copy of the
following WhatsApp conversation on 11 August 2020 with a third party
(TP) recovered from the
appellant’s devices before the court a
quo:
’
n
Informant bel my nou. Apperently soek klomp mense my... Andre
Naude se blykbaar ek sal nie Crismis sien nie. Hulle se ek
is jou
right hand man
MACS
blykbaar soek my ook.
[TP]
Lol
[TP]
Is jy dan bang
Fok
hulle
Masepiesse
[TP]
Hou op Na poes lusiter
[TP]
As hule on raak skiet almal vrek
Blykbaar
soek almal my oor my alliance met jou
Klomp
poesse
Ek
sal gun moet kry iewers
Daai
goed in hulle poes skiet as ek moet
Jy
moet net altyd my rug he
It hardly
needs stating that that is hardly consistent with the nature of a
conversation that might be expected between a debt collector
and a
creditor interested in recovering its motor vehicle. As I put
to the appellant’s counsel, it has all the hallmarks
of an
exchange between figures in a gangland context.
[50]
Du Plessis identified two police dockets
that had been opened in respect of attempts on André Naude’s
life in July
and September 2019, respectively.
[51]
The appellant filed an affidavit in
response to those of Captains Joubert and Du Plessis.
[52]
With regard to the evidence concerning the
report obtained from Mr Goldblatt (whom it will be recalled had not
been named in Joubert’s
first affidavit), the appellant stated
‘
Captain Joubert motivates this
objection
[ie. the likelihood of the
appellant interfering with witnesses or evidence]
by
referring to an unknown witness whom I supposedly have contacted to
remove the LAD and MarisIT from his/her phone. I do
not know
who this witness is and did not request anyone to delete LAD or
MarisIT from their phone
’.
I find the answer somewhat disingenuous. It is plain from the
context given earlier in this judgment that the
appellant must have
known that the only persons who could have provided the police with
that information would have been his service
provider, and therefore
probably Goldblatt. It is notable that the appellant did not
respond, when that information was provided
in the later exchange of
papers, to the evidence concerning the telephone number from which
Goldblatt testified that the appellant
had contacted him.
[53]
The appellant’s counsel argued that
Goldblatt’s evidence should be approached with scepticism
because he was a person
that had been engaged in what counsel
characterised as an unlawful business. Counsel also pressed the
inherent improbability
that the appellant would have been able to
contact Goldblatt while the appellant’s house was reportedly
swarming with police
officers.
[54]
It is indeed difficult to see how the
appellant could have been allowed the opportunity to telephone anyone
while the police were
at his house in large numbers and presumably
carrying out a search for devices. The inherent improbability
is so obvious
however that anyone making up a story is unlikely to
have included it in a false or manufactured version of events.
Factors
counting strongly in support of Goldblatt’s credibility
are the fact that it was he who first contacted the police, more than
two weeks before Kinnear’s murder, concerning the appellant’s
pinging of Kinnear and Booth, and secondly, that he was
able to
provide the telephone number from which the appellant had contacted
him. He was no doubt able to do that because
the number was
recorded on the device on which he received the call. He would
have appreciated that that could be checked
and a tracing done on the
number.
[55]
In all the circumstances, I consider that
the court a quo was entitled to accept the evidence given by
Goldblatt for the purposes
of its determination of the appellant’s
bail application.
[56]
The appellant’s counsel further
submitted that in any event the electronic evidence implicating his
client had already been
collected and that there was no manner in
which the appellant would now be able to hide or destroy it.
That might hold true
in respect of the evidence that has already been
collected, but there is nothing to say that the state’s case
against the
appellant will rest entirely on the evidence gathered
from his handsets. It is clear that the direct evidence against
the
appellant is circumstantial and that therefore much will depend
at the trial on how that evidence fits with the other pieces of
the
jigsaw. The significance of Goldblatt’s evidence is that
stands as proof of the appellant’s propensity and
readiness to
interfere with the evidence if given the opportunity. The
passage from the appellant’s replying affidavit
quoted in
paragraph [52]
above serves to indicate
that the appellant was less than candid about his interaction with
Goldblatt. It is conceivable that
even an innocent person in
his position might have made the request he directed to Goldblatt in
panic when the police descended
on him, but I would expect that an
innocent person would make a clean breast of things once he had
discovered that the police knew
about the telephone conversation and
had had the opportunity to reflect on his position.
[57]
The appellant denied that he had given
contradictory versions to the police. I have already discussed
above the manner in
which the magistrate was obliged to treat the
conflicting evidence on paper. As I noted there, the magistrate
was in the
circumstances of the current case obliged to accept the
state’s evidence concerning the contradictory versions given by
the
appellant. The fact that the appellant had given
conflicting versions was a factor bearing on his credibility and is a
feature
that the magistrate was entitled to take into account in
assessing how his explanations for his pinging and surveillance might
be regarded as his trial; in other words, it bears tangentially on
the court’s assessment of strengths and weaknesses of the
state’s case. It also bears on the appellant’s
honesty and trustworthiness, which was something the magistrate
had
to consider in weighing the appellant’s promises of good
behaviour if he were released on bail.
[58]
The appellant also gave explanations of the
production of a certificate by his then legal representative at an
earlier stage of
the proceedings that purported to show that he was a
licenced private investigator. The certificate was shown to be
a forgery.
The appellant’s explanation was that the
certificate had been used to enable him to travel on the roads during
the lockdown
period. It is difficult to understand though, why
if that were the case he did not speak up to correct the mistaken
impression
the court was being brought under when the certificate was
handed in. Even accepting the appellant’s explanation, it
painted him in a poor light.
[59]
The appellant denied that his release would
endanger the safety of the public. The magistrate appears to
have taken a different
view. There were sufficient features in
the evidence to justify her assessment. The electronic records
linked the appellant’s
tracing and surveillance activities with
several persons who became the victims of violence. They also
suggested that he
was involved in underworld activity. The
WhatsApp conversation quoted in paragraph 49 above might
reasonably be taken
as evidence indicative of a willingness by the
appellant to resort to violence in a gangland context if he thought
it necessary
for his purposes. The scourge of gang-related
violence in the Western Cape is notorious. And although the
appellant
is a resident of Gauteng, the person he said had threatened
that the appellant would not see Christmas, André Naude, would
appear to be based in the Western Cape as the investigations into
both attempts on Naude’s life are being undertaken under
Bellville and Durbanville police docket numbers.
[60]
The appellant denies that he played any
role in organised crime, but his denial rings hollow having regard to
his documented activities.
His endeavour to revert to the
version that he thought he was tracking all the individuals that he
pinged for the purposes of debt
collection and the recovery of motor
vehicles was risible. Not only by reason of the identity of the
persons he pinged and
the exceptional intensity with which he pinged
two of them on the days that they were shot at, but also because he
has not identified
his principal other than to say (which he latterly
sought to deny) that it was Mr Modack. The appellant’s
physical
surveillance of Colonel Kinnear in Gauteng and the character
of the contemporaneous WhatsApp conversations in connection therewith
are not readily reconcilable with his claim to have been on a car
recovery exercise. It is also inherently improbable that
any
creditor would have been willing to expend tens of thousands of rand
on tracking the whereabouts of persons such as Kinnear
and Booth,
whose places of work and residence could easily be ascertained if the
object was to collect a debt or recover a vehicle
from them.
[61]
In his replying affidavit, the appellant
averred that Captain Joubert’s statement that the appellant
functioned within a criminal
group that was financially profitable to
him was speculation unsupported by any evidence. He stated that
his bank account
was available to corroborate his financial
situation. His evidence was that the balance in his bank
account was only R7 000
at the time of his arrest. He
failed, however, to deal at all with the evidence that large amounts
of money were paid into
his bank during the period that he was
intensively pinging persons such as Kinnear and Booth. He also
failed to explain why
his statement that the payments he received
were made by eWallet accounted for only a small proportion of his
receipts, the last
of which was recorded as having taken place
several months before his arrest. In his reply, he stated only
that he received
payments for amounts of under R3 000 by
eWallet. It is obvious that very many payments in such
relatively small amounts
would have been required to compensate him
for even just the cost price of the pings used to track Kinnear and
Booth.
[62]
The appellant also emphasised the
circumstantial nature of the case against him and argued that it
would not be possible for the
trial court to hold on the evidence
described by Captains Joubert and Du Plessis that the only reasonable
inference was that he
had known or foreseen that his tracking was
intended to assist in a murder. His evidence in this regard
went as follows in
his replying affidavit (underlining in the
original):
Although
the charge of murder against me is serious, I submit that the State's
case is very weak and is based on weak circumstantial
evidence. The
evidence I refer to are (sic) the facts that I allegedly sent the
trace reports, photos and “pings” of
the person that I
was requested to trace, to another person. I submit that the only
reasonable inference based on these facts
is not
that I knew
or foresaw that a person will get killed if I do a trace report and
forward the persons photo and/or pinned location
to another person. I
am in the job of debt collecting and repossessing vehicles and in the
process, tracing people to repossess
vehicles, I cannot foresee that
the identity or XDS report I provide would lead to a murder.
The
only evidence against me is that I pinged people’s cell phones.
I submit therefore that there is
not
a strong likelihood that
I will be convicted of murder and therefore there is for me no reason
to invade my trial.
[63]
The magistrate was, of course, not called
upon to determine the guilt or innocence of the appellant. That
will be the function
of the trial court. She was, however,
entitled to take into account the apparent strength or weakness of
the case against
the appellant as far as that could be determined at
that stage. I do not think that she was bound to accept that
the case
against the appellant was as weak as he would have it.
I have already explained why I consider the magistrate was entitled
to consider that the appellant’s explanation that he believed
that he been engaged in debt collection and car recovery was
risible. She was also entitled to understand that a case that
depends on circumstantial evidence is one that that falls to
be
determined only at the end of the trial after all the evidence is
in. As Eksteen JA expressed the position in
S
v Ntsele
1998 (2) SACR 178
(SCA) at
182, ‘
Ons reg vereis ... nie dat
’n hof slegs op absolute sekerheid sal handel nie, maar wel op
geregverdigde en redelike oortuigings
– niks meer en niks
minder nie (
S v Reddy and Others
1996 (2) SASV 1 (A) op 9d-e). Voorts, wanneer ’n hof met
omstandigheidsgetuienis werk, soos in die onderhawige geval, moet
die
hof nie elke brokkie getuienis afsonderlik betrag om te besluit
hoeveel gewig daaraan geheg moet word nie. Dit is die
kumaltiewe indruk wat al die brokkies tesame het wat oorweeg moet
word om te besluit of die aangeklaagde se skuld bo redelike twyfel
bewys is (
R v De Villiers
1944 AD 493
op 508-9).
’
[64]
There are certainly many features in the
evidence put up by the State before the magistrate that make out the
basis of a prima facie
case. It was readily foreseeable in the
circumstances that the manner in which appellant deals with the
evidence at his trial
will play an important role insofar as the
ultimate effect of the evidence incriminating him is concerned.
As the appeal
court noted in
S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) at para 46-47 –
46.
It
is trite law that a court is entitled to find that the State has
proved a fact beyond reasonable doubt if a prima facie case
has been
established and the accused fails to gainsay it, not necessarily by
his own evidence, but by any cogent evidence. We use
the expression
‘prima facie evidence’ here in the sense in which it was
used by this court in
Ex
parte The Minister of Justice: In re R v Jacobson & Levy
1931 AD 466
at 478 where Stratford JA said at 478:
‘
Prima
facie evidence in its more usual sense, is used to mean prima facie
proof of an issue the burden of proving which is upon
the party
giving that evidence. In the absence of further evidence from the
other side, the prima facie proof becomes conclusive
proof and the
party giving it discharges his onus’
47.
Of course, a prima facie inference does not necessarily mean that if
no rebuttal is forthcoming,
the onus will have been satisfied. But
one of the main and acknowledged instances where it can be said that
a prima facie case
becomes conclusive in the absence of rebuttal, is
where it lies exclusively within the power of the other party to show
what the
true facts were and he or she fails to give an acceptable
explanation. In the present case the only person who could have come
forward to deny the prima facie evidence that he had authorised,
written or signed the letter, is the appellant. His failure to
do so
can legitimately be taken into account.
[65]
The appellant’s counsel’s
attempt at this stage of the proceedings to rely on the principles of
deduction in criminal
cases famously enunciated by Watermeyer JA in
R
v Blom
1939 AD 188
at 202
fin
-203
was misconceived because it was premature. The cardinal rules
of logic to which the learned judge referred there cannot
be applied
until the end of the trial;
a fortiori
not in a bail application when the police investigation is still in
progress.
[66]
It did occur to me, however, that it was
more than passing strange, in the context of the State’s heavy
reliance on the evidence
concerning the appellant’s pinging and
tracing of both Booth and Kinnear and the similarities in the
appellant’s modus
operandi on the days that those individuals
were attacked, that charges were preferred against the appellant only
in respect of
the assault on Kinnear and not in respect of that on
Booth. When I raised this with counsel for the State at the
hearing
of the bail appeal, he informed me, after taking
instructions, that it had been an omission and that the appellant
would face a
charge in respect of the attempted murder of Booth in
the consolidated charge sheet being drafted for the intended trial of
the
appellant together with a number of co-accused.
[67]
It is not only the apparent similarity of
the appellant’s modus operandi in relation to the two incidents
that appears to
be material. I would imagine that the
appellant’s knowledge of the widely publicised attack on Booth
and his necessary
appreciation of its contemporaneity with his
intensive pinging of the subject, would, coupled with the evidence
concerning the
source of his instructions, also be a critical issue
at his trial concerning his state of mind in respect of his activity
in the
lead up to the fatal shooting of Kinnear. Both of these
questions will no doubt be parts of the mosaic that the trial court
will have to review to determine whether the State has established
its case on the charges on which the appellant is to be tried.
[68]
The appellant’s counsel sought to
identify 15 irregularities or misdirections by the magistrate.
I do not find it necessary
to deal with each and every one of these.
Suffice it to say that I agree that the magistrate misconstrued the
evidence in
certain regards and made some findings, for example that
the appellant’s release on bail would conduce to public
disorder
or unrest, that were unjustified. I also consider that
the magistrate was misdirected in holding that the appellant had
failed
to adduce convincing evidence concerning his child’s
disability. As counsel correctly conceded, however, the
identified
misdirections do not, of themselves, mean that the appeal
against the magistrate’s refusal of bail can succeed. The
appeal can succeed only if this court comes to the conclusion that
the magistrate’s decision to refuse the application was
wrong.
[69]
In my judgment, for the reasons I have
discussed, I do not think that the magistrate was wrong in being
unpersuaded that the appellant
had shown exceptional circumstances
justifying his release on bail in the interests of justice. On
the contrary, I consider
that the magistrate was justified in finding
that in the face of prima facie evidence pointing to a knowing
involvement by the
appellant in the murder of Colonel Kinnear, the
appellant’s evidence in support of his bail application was
riddled with
improbabilities and untruths. He consequently
failed to discharge the onus to prove that, exceptionally to the
statutorily
ordained default position applying to persons charged
with Sixth Schedule offences, he should be granted bail. In the
context
of the public interest considerations related to the serious
nature of the offence with which he stood charged and the potentially
negative effect his release might have on the investigation and
prosecution thereof, the personal circumstances put up by the
appellant in support of his application were, in my view, not
sufficient to tip the balance in his favour.
[70]
In the result, the appellant’s appeal
against the order by the court a quo refusing his application for
bail is dismissed.
An order will issue accordingly.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Counsel
for the State:
G.D. Wolmarans
Office of the Director of Public Prosecutions, Western Cape
Appellant’s
counsel:
M. Botha
Appellant’s
attorneys:
Eric Bryer Attorneys
c/o MacGregor Erasmus Attorneys
Cape Town
[1]
Dlamini
supra,
at para 61 and 78-79.
[2]
Id para 76.
[3]
Id para 45.
[4]
Section 65(4)
provides: ‘
The
court or judge hearing the appeal shall not set aside the decision
against which the appeal is brought, unless such court
or judge is
satisfied that the decision was wrong, in which event the court or
judge shall give the decision which in its or
his opinion the lower
court should have given.
’
[5]
Recent instances are in
S
v Bader
2020 (2) SACR 444
(GP) at para
13,
S v Mququ
2019 (2) SACR 207
(ECG) at para 4 and
S
v Nel and Others
2018 (1) SACR 576
(GJ) at para 3.
[6]
Cf.
Media Workers Association of South Africa and Others v Press
Corporation of South Africa Ltd ('Perskor')
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
at 800CJ,
Knox D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 360D362G (and the authority cited there)
and
Hix Networking Technologies v System Publishers (Pty) Ltd and
Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A) at 402BC.
[7]
Plascon-Evans Paints (Pty) Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A),
at 634E-635C.
[8]
Ngqumba en ’n Ander v Staatspresident en
Andere
1988 (4) SA 224
(A). As
Harms DP, with reference to
Ngqumba
,
remarked in National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2)
SA 277
(SCA) at para 27 ‘(i)
n
motion proceedings the question of onus
does not arise
’.
[9]
Section 60(2)(c)
of the
Criminal Procedure Act.