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[2011] ZAGPJHC 159
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Molefe v S (A 391/11) [2011] ZAGPJHC 159 (14 October 2011)
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
NOT
REPORTABLE
CASE NO: A
391/11
DATE:14/10/2011
In
the matter between
K
MOLEFE
....................................................................................
APPELLANT
and
THE
STATE
................................................................................
RESPONDENT
Criminal Procedure - Bail
Appeal – bail pending trial refused by court a quo –
charges of corruption fraud and theft
- Schedule 5 matter –
relevant factors to be considered – syndicate operating within
ranks of SA Post Office –
strong prima facie evidence against
applicants – failure by appellant to deal with the allegations
against him – failure
to show that in interest of justice to be
permitted on bail - appeal dismissed
J U D G M E
N T
VAN OOSTEN J:
[1] This is an appeal against the
refusal of bail pending trial, by the Regional Magistrate,
Johannesburg. The appellant has been
arraigned as accused 8 in the
trial in which there are altogether nine accused.
[2] According to a provisional
charge sheet that was handed in at the hearing of the bail
application, altogether 71 charges, including
corruption, theft,
attempted theft and fraud are preferred against the accused. Not all
the charges are against all the accused:
the appellant provisionally
faces 30 charges of theft and one of fraud.
[3] The application for bail in
the court a quo commenced on 18 July 2011. Only 6 of the 9 accused,
including the appellant, applied
for bail. The application proceeded
by way of affidavits that were filed by the applicants and the State,
and no oral evidence
was led. The Regional Magistrate dismissed the
application in respect of all the applicants.
[4] The State handed in and
replied upon an affidavit deposed to by Mr Janse van Rensburg, who is
the National Manager, Forensic
Investigations Unit of the South
African Post Office. In this affidavit he has dealt fully with all
the available evidence against
the accused that has come to light in
the investigation that followed after it was established that the
South African Post Office
had suffered losses to the tune of R2,1m
for the financial year 1 April 2010 to 31 March 2011, resulting from
87 cases of client
accounts fraudulently dealt with by employees of
the South African Post Office.
[5] It is abundantly clear from
the affidavit of Janse van Rensburg that the losses I have referred
to, resulted from the unlawful
operations of a syndicate, the members
of which are all employees of the South African Post Office. Accused
1, it is alleged,
is the kingpin of the syndicate, while the other
accused are all involved in some way or another.
[6] The appellant deposed to an
affidavit on which he relied for the purpose of the bail application.
It is common cause that the
appellant, at all relevant times, was the
Hillbrow branch manager of the SA Post Office. As for the appellant’s
personal
circumstances, the following appears: he is married and 4
children were born from the marriage; he is resident in South Africa;
he is the registered owner of immovable property and he owns two
motor vehicles. In conclusion he states somewhat nonsensically:
“The
court will realise that I am suffering from a terminal illness”.
[7] Concerning the case against
him, the appellant scantily states that he was arrested at his
workplace, to which is added: “I
deny having been found in
possession of incriminating evidence against me”.
[8] When the affidavit of Janse
van Rensburg was handed in the contrary appeared as for the
appellant’s involvement in the
syndicate. The investigation,
according to Janse van Rensburg, revealed that the appellant had been
in possession of copies of
identity documents, concerning some of the
accounts under investigation, that were eventually passed on to
accused 2. The total
sum fraudulently withdrawn from accounts at the
Hillbrow Post Office amounts to R587 800. The investigation further
showed some
connection between accused 1 and the appellant: the
appellant’s name was amongst accused 1’s contacts on his
cell phone
which was confiscated at the time of his arrest.
[9] After the handing in of Janse
van Rensburg’s affidavit, the applicants were afforded the
opportunity to respond thereto.
Three of them in fact did respond.
The appellant, however, did not.
[10]
It is common cause that the bail application concerns a Schedule 5
matter. The
onus
accordingly, was on the applicants to show that the interests of
justice will permit the granting of bail (See
S
v Dlamini and Others
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)). In determining this aspect, the factors set out in
s 60
(4) to (9) of the
Criminal Procedure Act 51 of 1977
should be
taken into consideration.
[11] It is true, as was correctly
submitted by counsel for the appellant, that the mere fact of a
strong
prima facie
case against an accused, in itself, will not constitute a sufficient
reason for refusing bail. In this matter, however, it goes
much
further. Here, the
prima
facie
evidence for the
State shows a well-organised crime syndicate having operated over a
period of time, within the ranks of the South
African Post Office.
The appellant’s involvement in the syndicate has not been
denied or gainsaid by the appellant. On the
contrary, he did not
avail himself of the opportunity firstly, to correct his initial bare
denial, and secondly, to controvert
any of the allegations made
against him. These aspects, in my view, weigh heavily against the
granting of bail. The personal factors
of the appellant I have
already referred to, in essence parroting the requirements referred
to in
s 60
(4), therefore, pale into insignificance.
[12] The investigation of the
operations of the syndicate, as is apparent from Janse van Rensburg’s
affidavit, has now reached
a sensitive stage. Further information has
in the meanwhile come to the fore, as disclosed in an affidavit by
the investigating
officers in this matter, concerning the involvement
of the appellant in the syndicate. These allegations have likewise
been left
unanswered by the appellant. It is, finally, the intention
of the State to seek the approval of the National Director of Public
Prosecutions to charge the accused with racketeering.
[13] For all these reasons, I
conclude that the appellant has failed to prove that it will be in
the interests of justice for him
to be released on bail.
[14] I am accordingly satisfied
that the Regional Magistrate properly exercised his discretion in
refusing bail.
[15] In the result the appeal is
dismissed.
__________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELLANT
….............
ADV
C THOMPSON
COUNSEL FOR THE
RESPONDENT
...............
ADV
(MS) W VOS
DATE OF JUDGMENT
…..................................
14
OCTOBER 2011