About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 162
|
|
Levy v S (A77/2021) [2021] ZAWCHC 162 (23 August 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case No:
A77/2021
Magistrates
Court Case No: 16/413/2020
In
the matter
between:
MOEGAMAT
ZAMEER LEVY
Appellant
AND
THE
STATE
Respondent
Date
of Judgment: 23 August 2021
Delivered
via email to the parties’ legal representatives
and
released to SAFLII
JUDGMENT
LEKHULENI
AJ
:
INTRODUCTION
[1]
This an appeal in terms of
section 65
of the
Criminal Procedure Act
51 of 1977
(“
the CPA”
) against the refusal by a
magistrate from Cape Town Magistrates Court to grant bail to the
appellant.
BACKGROUND
[2]
In the matter resulting in this appeal the appellant is charged with
three counts
namely:
Ø
Count 1: contravening the provisions of
section 3
read with
section 120(1)(a)
of the
Firearms Control Act 60 of 2000
-
Possession of firearm.
Ø
Count 2: Contravening the provisions of
section
90
read with
section 120(1)(a)
of the
Firearms Control Act 60 of 2000
– Possession of ammunition.
Ø
Count 3: Contravening the provisions of
section
5(b)
read with the provisions of
section 51(1)
the
Criminal Law
Amendment Act 105 of 1997
– Dealing in drugs.
[3]
The appellant was arrested on 29 July 2020 for the alleged commission
of the above
offences. Prior to his arrest, the appellant faced
charges of assault with intent to do grievous bodily harm and
pointing someone
with a firearm which were allegedly committed on 19
July 2020. The appellant was released on R1000 (one thousand rand)
bail in
respect of this incident. These counts were subsequently
combined with the three charges mentioned above which were allegedly
committed
on 29 July 2020. As mentioned, the appellant was
released on bail in respect of the offence allegedly committed on 19
July
2020. He was denied bail on the latter incident. It is against
this order that this appeal was launched.
[4]
The investigating officer opposed the release of the appellant on
bail. She informed
the court a quo that on 29 July 2020 in the early
morning, police officers entered the appellant’s premises after
they were
informed by members’ of the public that the appellant
was dealing in drugs and had a firearm in his property. The police
indeed found a firearm with live rounds underneath the appellant’s
mattress and a lot of drugs in the room. The firearm that
was found
was a 7.65 calibre Browning firearm. The serial number was filed off.
The appellant was then arrested by the police.
The investigating
officer further told the court a quo that the investigations in the
matter were still incomplete as the ballistic
report and the medical
report of the complainant on the assault charge were still
outstanding. She was opposed to bail because
the accused was found in
possession of an unlicensed firearm and that the accused was released
on bail two weeks before he was
rearrested for possession of firearm
and drugs. The accused denied that he was found in possession of
drugs or the alleged firearm.
According to him, he does not bear
knowledge of the firearm and drugs.
[5]
At the commencement of the proceedings in the court below, it was
accepted by both
the state and the defence that the bail application
fell within the ambit of Schedule 5 of the CPA. That being the case,
it was
common cause that the appellant had the duty to prove that it
was in the interest of justice to permit his release on bail. The
appellant presented viva voce evidence in support of his case and the
state led the evidence of the Investigating officer in opposition
of
the appellant’s application.
GROUNDS
FOR THE BAIL APPEAL
[6]
The grounds of appeal as contained in the appellant’s notice of
appeal are essentially
that the magistrate failed to attach any
weight or sufficient weight to the appellant’s application in
that:
6.1
The appellant set out in detail all of his personal circumstances.
These circumstances indicated
that he has a fixed address and that he
has four dependants as well as an elderly mother who all rely on him
financially.
6.2
That the appellant ‘s record of previous convictions does not
reflect that he has
a propensity to commit offences as his personal
circumstances have dramatically changed from the time he committed
most of the
offences which are now his previous convictions.
6.3
That the magistrate erred in finding that the appellant has a
predisposition to commit a
schedule 1 offence or that the community
would be endangered by his release as the presumption of innocence
favours him in respect
of his pending matter.
6.4
That the magistrate incorrectly drew the conclusion that due to the
appellant’s readmission
owing to a breach in parole conditions
was an indicator that the appellant would not stand his trial in this
matter.
6.5
That the magistrate erred in finding that the appellant was a danger
to the public particularly
the complainant.
6.6
While the magistrate did note that the appellant had allegedly
committed these offences
while out on bail the charges against him
have not been proved.
SUBMISSIONS
BY THE PARTIES IN THIS COURT
[7]
Due to the spike in Covid-19 infections and the unavailability of
both legal representatives
on the same day, this court in concurrence
with the legal representatives invoked the provisions of
section
19(a)
of the
Superior Courts Act 10 of 2013
to dispose of the appeal
on the written submissions of the parties without the hearing of oral
argument. To this end, both parties
filed comprehensive heads of
arguments and I am indebted to them.
[8]
Mr Booth argued on behalf of the appellant that the magistrate erred
in finding that
the appellant has a predisposition to commit these
types of offences or that the community will be endangered by his
release. He
contended that the presumption of innocence favours the
appellant in respect of his pending matter. He also argued that the
appellant
was initially released on bail in the pending matter and
had attended court for the pending matter until he was arrested for
this
matter. It was contended on behalf of the appellant that the
court below erred in failing to consider the effectiveness of bail
conditions to cure any fear alleged by the state including checking
in at the Police Station regularly. It was asserted that the
magistrate erred in finding that the appellant was a danger to the
public and for failing to consider the provisions of
section 60(9)
of
the CPA in particular. More importantly, it was submitted that the
appellant would attend court and stand trial in the present
matter if
he was released on bail.
[9]
Mr Sityata for the State argued that the appellant is not a suitable
candidate to
be released on bail as the appellant has twelve previous
convictions, four of which were drug related and thus similar to the
current
charge of possession of drugs that the appellant is facing.
Counsel contended that there is a propensity on the part of the
appellant
to commit schedule 1 offences and that should he be
released on bail, there is a real likelihood that he will further
commit schedule
1 offences. Mr Sityata stressed the fact that it was
common cause that at the time of the commission of the offences, the
appellant
was on bail for a mere two weeks having been released on
other schedule 1 offences. This, it was argued, shows a complete
disregard
for the rule of law by the appellant who was aware that one
of the most important condition of his release on bail was that he
should not commit any further offences until his matter was
finalised. Mr Sityata contended that if the appellant was released on
bail with conditions, there was a real likelihood that he will not
adhere to those conditions.
THE
ISSUES
[10]
The issues to be determined in this matter are whether the appellant
has discharged the burden
placed on him by
section
60(11)(b)
of
the CPA to be admitted to bail and whether the magistrate has indeed
erred by refusing to grant the appellant bail.
THE
APPROACH OF THE APPEAL COURT
[11]
In dealing with an appeal matter such as this, the powers of this
court are governed by the provisions
of
s 65(4)
of the CPA
.
The
section provides as far as is necessary as follows:
'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.'
[12]
From a careful reading of the above section, it is clearly
discernible that this court will only
interfere with the decision of
the bail court if the magistrate has misdirected herself materially.
In applying the provisions
of
section 65(4)
the court hearing the
bail appeal must approach it on the assumption that the decision of
the court a quo is correct and not interfere
with the decision,
unless it is satisfied that it is wrong. See
S
v Mbele & another
1996
(1) SACR 212
(W) at 221H-I. The appeal court will interfere if the
magistrate overlooked some important aspects of the case or
unnecessarily
overemphasized others, in considering and dealing
with the matter - See
S
v Mpulampula
2007
(2) SACR 133
(E)
;
State v
Essop
2018
(1) SACR 99
(GP) at para 23.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[13]
In this case, the appellant had the onus to show that on a balance of
probabilities it was in
the interest of justice for him to be
released on bail. It is not in dispute that the charges levelled
against the appellant are
very serious in nature. The appellant has
twelve previous convictions and four of which are drug related. In
addition to other
counts, the appellant is also facing a charge of
possession of drugs. In
S v Smith and Another
1969 (4) SA 175
(N) at 177, it was stated that ‘the court will
always grant bail where possible, and will lean in favour of and not
against
the liberty of the subject provided that it is clear that the
interests of justice will not be prejudiced thereby.’ The
essence
therefore of the principles and considerations underlying
bail is that no one should remain locked up without good reason.
[14]
Against this backdrop, I turn to consider the question whether the
lower court erred in refusing
to admit the appellant to bail. In my
view, the starting point in addressing the issues before this court
should be the Constitution.
Section 35(1)(
f
) of the Bill
of Rights provides that everyone who is arrested for allegedly
committing an offence has the right to be released
from detention if
the interest of justice permit, subject to reasonable conditions.
From the reading of this section, it is abundantly
clear that it is
not absolute but its ambit is circumscribed by the interest of
justice. (See
S v Yanta and Another
A71/21; A43/21)
[2021]
ZAWCHC 96
(14 May 2021) at para 13. The court must be satisfied that
the interest of justice warrants the release of the accused from
detention.
[15]
Bail applications of accused persons in court are regulated
by section
60
of
the CPA. Section
60(1)(a)
of
the CPA provides that ‘
An
accused who is in custody in respect of an offence shall, subject to
the provisions of section
50(6), be entitled to be
released on bail at any stage
preceding his or her conviction in respect of such offence, if
the court is satisfied that
the interests of justice so permit’.
Section 60(4)
provides that t
he
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;
(e)
Where in exceptional circumstance there
is the likelihood that the release of the accused will disturb the
public order or undermine
the public peace or security”.
Section
60(5) to s 60(9) details the factors to be considered when having
regard to subsections 60(4)(a) to (e) discussed above.
This court
must consider whether on the facts and the evidence presented in the
court a quo, the magistrate misdirected herself
or erred when she
found that the appellant had failed to satisfy the court on a balance
of probabilities that the interests of
justice permitted his release
on bail.
[16]
In this case, the charges levelled against the appellant involved
offences listed in Schedule
5 of the CPA and this application in the
court
a quo
had to be determined in terms of section 60(11)(b)
of the CPA, which provides as follows:
‘
Notwithstanding any
provision of this Act, where an accused is charged with an offence
referred to in
Schedule 5, but not 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 the interests of justice
permit his or her release
.’
[17]
This section proceeds from the viewpoint that bail is not granted
unless the accused offers evidence
after a reasonable opportunity has
been given why the court should grant him bail. It clearly places an
onus upon the accused to
adduce evidence satisfactorily why the
interest of justice permits his release. In terms of
section
60(11) (b), the accused has to satisfy the court that the interests
of justice do not require his detention in custody.
In other
words, the interest of justice should justify the accused’s
release on bail. Therefore, a
n
accused person on schedule 5 offence will be granted bail if he can
show that the interest of justice permits such order. It follows
therefore that t
he success of this
appeal is dependent on whether the appellant in the court a quo
discharged the onus in terms of section 60(11)
(b) of the CPA.
[18]
A formal bail application was conducted at the instance of the
appellant in the court below.
In the bail application proceedings,
the appellant testified under oaths. He did so with a view to comply
with the provisions of
section 60(11)(b) of the CPA in discharging
the onus resting on him to satisfy the court that it was in the
interest of justice
that he should be released on bail. In support of
his application, the appellant testified that he is 31 years old. He
resides
with his mother at no 11 Regina Court in Maitland. He has
been living there since he was a child. He has four minor children.
The
minor children are currently leaving with their mothers and he
pays R1000 maintenance in respect of each child. Prior to his arrest
he was self-employed selling takkies and clothing and he
approximately earned twelve to fifteen thousand per month. He
testified
that he has no outstanding warrants against him and he had
one pending case which was since combined with the main charges in
this
matter.
[20]
He testified that he has twelve previous convictions, ranging from
possession of drugs, housebreaking
with intent to steal and theft,
theft etc. He testified that he is suffering from chronic asthma and
gastric refluxes. He was released
on bail in respect of his pending
matter and he attended court without fail. He testified that he will
stand trial if he was released
on bail. He intends to revive his
business and continue to provide for his family as his incarceration
caused him severe sufferings.
[21]
As stated above, the appellant denied any involvement in the alleged
commission of the offences
levelled against him. In my view, the
innocence or the guilt of the appellant is an issue which should be
left to the trial court
for consideration. What this court has to
consider is whether the court
a quo
erred in dismissing the
appellant’s application to be released on bail. The record
reveals that the magistrate in the court
below considered the
seriousness of the charges faced by the appellant; his personal
circumstances, the provisions of section 60(4)
discussed above as
well as section 60(6) and 60(7) and concluded that there is a real
likelihood that the appellant might commit
a scheduled 1 offence.
[22]
The court a quo also found and correctly so in my view, that the duty
of the trial court in a
bail application is to assess the prima facie
strength of the state case against the bail applicant as opposed to
making a provisional
finding on the guilt or otherwise of such an
applicant. The magistrate was alive to the fact that bail proceedings
are not to be
viewed as a full dress rehearsal of the trial but that
should be left for the trial court.
As
far as the strength or otherwise of the case against the appellant is
concerned, the magistrate acknowledged that the appellant
was
arrested after the police reacted to complaints by community members.
The police arrested the appellant after there were complaints
that he
was
dealing in drugs and that a firearm and drugs were
found in his property.
She
found that the community and the broad public look up to the courts
to ensure that the administration of justice is not brought
into
disrepute and need the assurance of the proper functioning of our
criminal justice system including our bail system.
After
considering all these factors, she came to the conclusion that it was
not in the interest of justice for the appellant to
be released on
bail.
[23]
I can find no fault with this evaluation. In my considered view, the
appellant failed to discharge
the onus resting on him of proving that
it was in the interest of justice that he be admitted to bail.
Furthermore, it cannot be
said that the state's case against the
appellant is non-existent, or weak and that the appellant in all
likelihood will be acquitted
after the trial. The appellant has not
in my view been able to show that he will in all likelihood be
acquitted.
I am aware that the
presumption of innocence favours the appellant in respect of his
pending matters, however I need to stress the
fact that
the
right to be presumed innocent is not a pre-trial right, but a trial
right. See
S
v Mbeleki and Another
2013 (1) SACR 165
(KZD) at para 14.
I
n
S
v Dlamini
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at para 100, the Constitutional Court noted
that not only the innocent are entitled to their release on bail
pending trial.
On the contrary, even those who have been
convicted and sentenced to imprisonment can be and often are released
on bail pending
appeal.
[24]
I am also alive to the fact that the bail proceedings are not
punitive in nature however, I am
of the view that on a conspectus of
all the evidence placed before the magistrate, it cannot be said that
she misdirected herself
when she refused the appellant’s
application to be released on bail.
[25]
It has been argued that the magistrate failed to consider section
60(9) of the CPA in particular
the prejudice that the appellant would
suffer if he were to be detained in custody. The court a quo did not
specifically mention
section 60(9) in its judgment however the
magistrate was alive to the personal circumstances of the accused
placed on record which
in my view encapsulated the provisions of
section 60(9). In her judgment, the magistrate indicated that when
considering whether
or not bail must be granted in a particular case
the court must consider the personal circumstances of the applicant,
the seriousness
of the offence and the interest of justice.
In
my view, she considered section 60(9) and was correct in her finding
that it was not in the interest of justice for the appellant
to be
released on bail. In addition, I am satisfied that the learned
magistrate correctly applied the provisions of s 60(4), 60(5)
60(6)
and 60(7) of the CPA. Section 60(4) of the CPA clearly provides that
the interests of justice do not permit the release from
detention of
an accused where one or more of the grounds referred to in the
subsections of section 60(4) are established.
[26]
What I find extremely disturbing is that the appellant is applying to
be released on bail despite
the fact that he was previously granted
the same indulgence a week before he allegedly committed the second
offences. He messed
up the indulgence that was given to him by the
court. The appellant expect to be afforded yet another opportunity to
be out on
bail when he was released on bail in respect of the assault
and pointing someone with a firearm. It is a common cause factor that
the current offences that the appellant is facing were allegedly
committed while the appellant was on bail. In this regard, I agree
with the views expressed by the respondent’s counsel that the
conduct of the appellant shows a complete disregard for the
rule of
law in that he was aware that one of the most important condition of
his release was that he should not commit any further
offences until
his matter is finalised.
[27]
In my view, the finding by the court a quo that there is a likelihood
that if the appellant is
released on bail he might commit schedule 1
offence is beyond reproach. The finding by the magistrate that the
appellant has the
propensity of committing serious offences cannot be
faulted. He is facing serious charges some of which were committed
whilst he
was on bail. If he is released on bail, I repeat the
appellant is likely to commit schedule 1 offences. In my view, it
cannot be
said that the magistrate was wrong in refusing to admit him
to bail. There is no basis in law for this court to interfere with
the discretion exercised by the magistrate. It follows therefor that
the appeal must fail.
ORDER
[28]
In the result, the following order is made:
28.1
The appeal is dismissed.
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT
WESTERN
CAPE HIGH COURT