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[2021] ZAWCHC 192
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Haywood v S (A108/21) [2021] ZAWCHC 192 (21 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: A108/21
In
the matter between:
MOEGSIEN
HAYWOOD
Appellant
and
THE
STATE
Respondent
Coram
:
Kusevitsky,J
Heard
:
14 September 2021
Delivered:
This judgment was handed down electronically by
circulation to the parties’representatives via email. The date
of hand-down
is deemed to be 21 September 2021.
JUDGMENT
KUSEVITSKY,
J
Introduction
[1]
This
is an appeal against the refusal of bail in the court a
quo
.
The Appellant is arraigned on various offences of which some are
listed in Schedule 6 of the Criminal Procedure Act
[1]
.
These include robbery with aggravating circumstances, contraventions
of the Firearms Control Act and contraventions of the
Prevention of
Organised Crime Act 121 of 1998
. More details of the charges appear
hereunder.
[2]
The
Appellant brought a formal bail application in the Mitchells Plain
District Court on 13 September 2019 and same was refused
on 16
October 2019.
[3]
According
to the State, the Appellant again on 19 May 2020 attempted a formal
new facts bail application, in the Mitchells Plain
District Court,
however this bail application was abandoned.
[4]
The
Appellant now appeals against the refusal of the initial decision by
the Magistrate in the court a
quo
.
Application
for Condonation
[5]
On
24 March 2021, the Appellant gave notice of his intention to appeal
the refusal of bail on 16 October 2019. He appeared on two
counts of
robbery, five counts of the illegal possession of firearms, one count
of money laundering and one count of the acquisition
or use of the
proceeds of unlawful activities.
[2]
[6]
The
Appellant states that the delay in filing the notice of appeal was
not due to his failure or negligence, but based on the legal
advice
that he received from the legal representative that dealt with the
bail application. He says that he was initially advised,
after bail
was refused, not to lodge an appeal but to apply for bail on new
facts. This application was never completed as he was
advised that
there were insufficient facts to justify another bail application and
that he had to rather lodge an appeal against
the refusal of bail in
terms of section 65(1) of the Criminal Procedure Act.
[7]
His
legal representative then attempted to obtain a record of the bail
proceedings but was unsuccessful. Copies of the documents
pertaining
to the application were eventually obtained from the investigating
officer. They say digital recordings were subsequently
traced at
court during March 2021.
[8]
It
is trite that condonation is not to be had merely for the asking; a
full detailed and accurate account of the causes and their
effects
must be furnished so as to enable the Court to understand clearly the
reasons, and to assess the responsibility.
[3]
The factors which a court considers when exercising its discretion
whether to grant condonation include the degree of non-compliance
with the rules; the explanation for it; the importance of the case;
the respondent’s interest in the finality of the judgment
of
the court below; the convenience of the court and the avoidance of
unnecessary delay in the administration of justice.
[4]
[9]
In
the case of
Sayed
,
the application for condonation was refused on the basis that that
application was deficient for want of an adequate explanation
detailing the causes of delay and long periods in which nothing was
done in prosecuting the appeal. The circumstances in this matter
are
however distinguishable. Here, it is not the wilful non-compliance
and disregard for the rules of court
[5]
,
but rather the delay in obtaining the transcript of the lower court
which unfortunately, is not an unusual occurrence which usually
has
the concomitant result of delaying further proceedings in a higher
court. Condonation was accordingly granted in the interests
of
justice.
[10]
The
statutory framework and legal principles applicable to bail
applications where the Appellant is charged with
inter
alia
a schedule 6 offense are well established. The Appellant, on a
balance of probabilities, must show the existence of exceptional
circumstances which in the interests of justice permit his
release.
[6]
Such circumstances
are generally ordinary circumstances of an exceptional degree. See
S
v Rudolf
2010 (1) SACR 262
(SCA)
The
case for the Appellant
[11]
According
to the affidavit in support of bail submitted to the court a
quo
,
the Appellant was 61 years old at the time of that application,
making him presently 63 years of age. He was arrested on 17 May
2019
and has been in custody ever since. He lives in Grassy Park and has
been residing there for the past 30 years. He lives with
his wife;
there are three houses on the property and one of the houses is
occupied by his brother-in-law. He has three children
aged 35, 15 and
11. The youngest children reside with their mother in Mitchells
Plain. His wife is a teacher at a primary school.
He also stated that
he was not in good health, having injured his back and has been
prescribed ibuprofen.
[12]
The
Appellant argues that there are no indications that he is a flight
risk and that he will seek to evade his trial.
[13]
With
regard to the strength of the States case, the following is stated:
The Kensington case: the police searched the Appellant’s
premises and found a vehicle which had been reported as hijacked; in
a kitchen cupboard they found two backpacks and a bag containing
firearms and ammunition. The police also found a Suzuki motorcycle in
a locked room on the property. It later transpired that that
motor
cycle was stolen in Johannesburg in an alleged robbery and both the
Appellant and his son were positively identified in an
ID parade by
the complainants.
[14]
Both
the Appellant and his son Ziyaad, who had earlier been on the
premises inspecting a motor vehicle, were arrested and subsequently
released on R 5000.00 bail. That case was provisionally withdrawn
against the Appellant as his son had failed to attend court.
Sixteen
months later, the police arrived at the Appellant’s residence
in Grassy park and found his son hiding in a cupboard.
Both the
Appellant and his wife were charged with the alleged harbouring of a
fugitive. Both the Appellant and his wife were released
on bail.
Meanwhile, charges in the previous matter were reinstated against the
Appellant after his son was re-arrested. After subsequent
appearances, only the Appellant was released on bail and charges
against him subsequently withdrawn. His son however remained in
custody.
[15]
With
regard to the charges of the illegal possession of firearms, it is
common cause that the Appellant was arrested in what is
colloquially
known as a ‘trap’, a procedure in terms of section 252A
of the Criminal Procedure Act. The Appellant states
that he was
coerced by one “Bilal” to purchase firearms for resale so
that he, the Appellant could raise money for
his son’s legal
fees. He was ostensibly told by Bilal that he could purchase the
firearms for very cheap, i.e. R 2 500 for
each firearm and that it
could be resold at a great profit. He was subsequently arrested for
purchasing five firearms.
[16]
In
the grounds for the appeal, the Appellant
inter
alia
complains that the ID parade was
flawed in that their photographs were distributed beforehand. He also
argues that he was incorrectly
identified in that the ages of the
alleged perpetrators, according to the complainants, who had
committed the robbery, were approximately
35 and 28 years old
respectively, whereas he was 58 years old with grey hair at the time
of the alleged offence. He also maintains
that the firearms were not
actual firearms, since the police deactivated it prior to the
transaction.
The
case for the Respondent
[17]
The
State argued that the Appellant has a propensity to commit crime as
is evident from his previous convictions. Other than the
offenses
listed here, the Appellant was also found guilty of various charges
of theft with the most recent offence having been
committed in 2016
where he was sentenced to two years imprisonment in terms of section
276 (1)(i) of the Criminal Procedure Act.
The Appellant also admitted
to purchasing the illegal firearms.
[18]
The
State contended that the Appellant is a danger to society. According
to the affidavit of the Mr Joubert the investigating officer,
he
contended that they had received information from a source that the
Appellant ordered fully automatic assault rifles, like AK47’s,
hand grenades or explosives and explosive devices. He also specified
that the Appellant instructed that all of the weapons had
to be clear
of any serial numbers. An undercover operation ensued. On the
designated day, the Appellant arrived at the designated
meeting area.
A purchase price of R 2500.00 per firearm was agreed upon. The
Appellant arrived and a further three other persons,
were identified
as ‘look-outs’. The Appellant approached the undercover
agent who showed him a bag containing the firearms.
The Appellant,
after inspecting the firearms and handling it with a piece of toilet
paper, went back to his vehicle and returned
with the money, throwing
R 17 000.00 in cash into the agent’s car boot and collecting
the bag containing the firearms. It
is common cause that he was
arrested on these charges whilst out on bail.
[19]
The
State maintains that the reason given by the Appellant for the
purchase of the weapons is misleading. They argued that if it
was the
intention of the Appellant to purchase the firearms for a cheap price
for resale at a profit, then why did the Appellant
pay the seller
nearly R5000 more than the agreed price for the firearms. The State
also alleged that the Appellant in fact did
not only order firearms,
but specifically requested automatic rifles in the form of AK47’s
and explosives.
[20]
When
the Appellant’s premises were searched and his son found hiding
in a cupboard, the following items were also
inter
alia
seized; 3 x semi-automatic
weapons; 1 x silencer; 425 rounds of ammunition; 1 x signal jammer; 5
x High Court stamps and 1 x Official
SAPS Identification Certificate.
According to the record the Appellant was employed as a Messenger’s
Clerk for an attorney’s
firm up until January 2018 when he was
harbouring a fugitive.
[21]
In
the
court a quo
,
the magistrate dealt with the same defences raised in these grounds
for appeal. He stated with regard to the ID parade, that it
was
common cause that the Appellant had an attorney representing him and
whom had flown up to Johannesburg to attend the ID parade.
That
attorney indicated that there were no irregularities in the procedure
of the ID parade.
[22]
With
regard to the health complaints, the investigating officer had made
enquiries with the prison authorities as to whether the
Appellant had
complained about any medical issues. The prison records indicated
that no such complaint was ever made by the Appellant.
It was only
after that investigation was made by the investigating officer, that
the Appellant presented to the prison authorities
the following day
that he was feeling unwell.
[23]
The
magistrate also maintained that it mattered not that the firearms
purchased by the Appellant were not capable of discharging
ammunition. The Appellant was unaware that the police had done so
prior to the transaction and in his mind, he was purchasing fully
functioning firearms. The court
a quo
found that the Appellant had known that he was purchasing firearms
illegally.
[24]
The
court
a quo
also
inter alia
found that the Appellant, on the enquiry whether there was a
likelihood that the Appellant would undermine or jeopardise the
objectives
or proper functioning of the criminal justice system,
including the bail system, provided false information with regard to
his
health. Cumulatively, the court
a
quo
found that there were no
exceptional circumstances which in the interests of justice permitted
the release of the Appellant.
Discussion
[25]
The
appeal to this court
is
in terms
of
Section
65 of the
Criminal
Procedure
Act.
In terms of Section
65(4):
"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."
[26]
In
S
v
Barber
1979 (4)
SA 218
(D) at 220
E-H
,
Hefer J remarked in respect of s65(4) of the Criminal Procedure Act:
"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."
[27]
As
stated above, s65(4) does not empower me to set aside the decision
unless I am ‘
satisfied that the
decision was wrong
’. Based on the
record and judgment alone, I can find no misdirection in the decision
in the court
a quo
,
to refuse bail.
[28]
Further
considerations solidify my conclusion. Prior to the hearing of this
bail appeal, and during argument, the State presented
evidence which
amounted to new facts evidence. The evidence was presented to counsel
for the Appellant in order for him to advance
a response to these
allegations.
[29]
It
is trite that presiding officers should have as much relevant
information at their disposal in order to properly balance the
public
interest and the right to personal freedom of an accused person in
bail applications
[7]
. A court
may also take account of whatever information is placed before it in
order to form what is essentially an opinion or value
judgment of
what an uncertain future holds. It must not prognosticate. To do this
it must have regard to whatever is put up by
the State in order to
decide whether the accused has discharged the onus of showing that
‘
exceptional
circumstances exist which in the interests of justice permit his
release
.’
[8]
A court has also greater inquisitorial powers in such an enquiry, but
those powers are afforded so as to ensure that all material
factors
are brought to account, even when they are not presented by the
parties, and not to enable a court to disregard any of
the factors
listed in section 60 of the Criminal Procedure Act.
[9]
Having regard to the above, I am persuaded that it is in the
interests of justice that I am obligated to take these new facts into
account when evaluating whether or not the Appellant is entitled to
be released on bail.
[30]
The
new facts are as follows: The State presented a copy of a J7E release
form in respect of the Appellant. According to the State,
it is a
falsified document. On closer scrutiny, it is apparent that this
document was ‘signed’ by a Judge of this Division,
ostensibly sitting in the Mitchells Plain District court on 14
December 2020; bail was set in an amount of R 3000.00. From the
document, it is apparent that the Judge’s signature was forged
in order to give the impression that bail was approved. Judges
do not
sit in lower courts hearing bail applications. It was also submitted
that subsequent to enquiries being made as to the authenticity
of the
document, that the investigating officer Mr Joubert, opened a case of
fraud in respect thereof and that that docket has
since gone missing.
The State alleges that the only person who could have benefited from
the forged document is the Appellant,
who would have been released
immediately had someone presented the requisite bail money. The
Appellant on the other hand argued
that he is in custody and has no
knowledge of the forged J7 document and that he should not be
penalized for the existence of the
forge J7 document.
[31]
The
interests of justice dictate
[10]
and do not permit the release from detention of an accused person
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 jeopardize 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. (“My emphasis”)
[32]
The
Appellant argues that given the Appellant’s advanced age; the
fact that he has been released on bail before; and that
his
co-accused have been released on bail justifies the release of the
Appellant on bail. The State on the other hand argues that
the
Appellant’s co-accused have applied to be section 204
witnesses; his son has entered into a plea bargain and is already
serving his sentence; and in any event, a trial date for the
Appellant has already been set this month. I am of the view that in
light of the seriousness of the charges, the strength of the state’s
case and the fact that the trial is not too far off,
that it cannot
be said that the interest of justice demands that he be released in
those circumstances. The release on bail of
his co-accused is also of
no moment in these proceedings. As determined in
Solomons
v
S
[11]
, the record of those
bail proceedings are not before me nor do I believe that such a
record would be relevant. Each case has to
be determined on its own
facts.
[33]
What
is required in respect of schedule 6 offences is that the court
consider all relevant factors and determine whether individually
or
cumulatively they warrant a finding that circumstances of an
exceptional nature exist which justify the release of an accused.
[34]
I
am of the view that given the existence of a forged J7 in the
Appellant’s prison file, and the subsequent disappearance
of
that docket to investigate the matter, that there is already
prima
facie
evidence that the administration of justice has been compromised.
These allegations, especially the forging of a presiding officer’s
signature in circumstances such as this, is of such a serious nature,
that the interests of justice dictate that bail should in
these
circumstances, be refused.
[35]
Another
factor which this court has to take cognisanze of is the fact that
the firearm offenses were committed whilst the Appellant
was out on
bail. It is only if, once the interests of justice permit, that he
who is detained becomes entitled to be released
[12]
.
In my view, on the totality of the evidence, the release of the
Appellant on bail would bring the administration of justice into
disrepute.
[36]
In
the result, the application is dismissed.
DS
KUSEVITSKY
Judge
of the High Court, Western Cape Division
Counsel
for the Appellant:
Advocate
KJ Klopper
Counsel for the
Respondent: Advocate A Isaacs
[1]
Act
51 of 1977
[2]
Notice
of Appeal in terms of s65 of Act 51 of 1977 Against the Refusal of
Bail and application for Condonation dated 24 March
2021
[3]
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1)
SA 292
(SCA) para 6; Sayed v The State (530/2017)
[2017] ZASCA 156
(24 November 2017) para 8
[4]
Sayed
supra
at para 9
[5]
See
Peterson v S (A63/2021)
[2021] ZAWCHC 154
(11 August 2021)
[6]
See
s60(11)
of the
Criminal Procedure Act, 51 of 1977
.
[7]
Phiri
v
S 1/2003
ECD 6 February 2003
[8]
Schietekat
supra
at 247
[9]
S
v Mabene and Another (373/06) ZASCA 178;
2007 (1) SACR 482
para 7;
[2007] 2 All SA 137
(SCA) (17 October 2006) para 7
[10]
Section
60(4)
of Act 51 of 1977
[11]
[2019]
2 All SA SA 833 (WCC) at para 73
[12]
S
v Schietekat
1999 (2) BCLR 240
(C) at 245