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2011
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[2011] ZAGPJHC 185
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Van Vuuren v S (A 468/11) [2011] ZAGPJHC 185 (7 December 2011)
SOUTH GAUTENG HIGH
COURT
(JOHANNESBURG)
NOT REPORTABLE
CASE NO: A
468/11
DATE:07/12/2011
In the matter between
JOHANNES
GERHARDUS JANSEN VAN VUUREN
.
APPELLANT
And
THE
STATE
.
RESPONDENT
Criminal Procedure –
appeal against refusal of bail pending trial on charge of murder and
assault – Schedule 5 of Criminal
Procedure Act offence –
onus on applicant to establish that in interest of justice to be
permitted on bail - factors affecting
– misdirection by court a
quo as to assessment of evidence – appeal allowed – bail
granted subject to appropriate
conditions
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 Magistrate,
Randburg. The appellant is charged with murder
and assault and the
trial has been set down for hearing in this court on 30 January
2012.
[2] The appellant was
arrested on 2 May 2011. The allegations against him are that he on
this day had visited his girlfriend, the
deceased, that probably as a
result of some altercation, he chased her towards the entrance gate
of the security housing complex
where she was living and that he
stabbed her in front of the security officer who was on duty at the
gate at the time. The security
officer tried to intervene but the
appellant threatened him and continued with the assault on the
deceased. The appellant on the
spot attempted to commit suicide but
he was apprehended.
[3] An application for
bail was lodged and the hearing thereof commenced on 31 May 2011. The
charge of murder is referred to in
Schedule 5 to the
Criminal
Procedure Act 51 of 1977
and the appellant accordingly bears the onus
of satisfying the court that the interest of justice permits his
release on bail.
The application by the appellant proceeded by way of
affidavit. The State called the investigating officer in this matter
to testify
and to furnish his reasons for opposing bail. On 6 June
2011 the Magistrate refused bail.
[4]
On 15 September 2011 the appellant renewed the application for bail.
The further evidence presented consisted of an affidavit
by the
appellant dealing with new evidence. The evidence introduced
concerned the appellant’s version concerning a protection
order
that had been obtained against him by the deceased, in 2007, and a
Psychiatric Risk Assessment Report on the appellant by
Dr Matjane, a
consultant Psychiatrist in the Department of Correctional Services.
In its response thereto the State handed in a
letter by Brigadier GN
Labushagne, the Section Head: Investigative Psychology of the SA
Police Service. I will revert to the evidence
where necessary later
in the judgment. The Magistrate again refused bail essentially based
on the findings firstly, with reference
to
inter
alia
the protection order, that the
appellant had a propensity to violence, and secondly, based on the
report of Brig Labuschagne, that
the appellant’s previous
threats to family members of the deceased should be taken seriously.
The appeal is against the refusal
of bail.
[5] In deciding this
appeal it is necessary, as was the approach correctly adopted by the
Magistrate, that all the facts pertaining
to both applications should
be considered. It is at the outset necessary to consider the finding
of the court a quo concerning
the appellant’s propensity to
violence and in conjunction therewith the appellant’s attempt
to commit suicide immediately
after he had stabbed the deceased. In
this regard the protection order and circumstances surrounding the
granting thereof cannot
be ignored. But the enquiry does not end
there: the events occurred during 2007 and at a time that the
relationship between the
appellant and the deceased had become
strained. The appellant states in the second bail application that he
and the deceased, during
the latter part of 2007, reconciled their
differences and continued their relationship which is confirmed by
photographs taken
of the deceased at family functions they attended.
The protection order, as the appellant correctly asserts, must in the
course
of time and in the nature of their continued relationship,
have faded into oblivion. The protection order therefore, should be
viewed in its proper perspective: it is of historical relevance and
certainly points to the appellant resorting to violence in that
particular situation of conflict. This is then exactly what occurred
again when the deceased was stabbed.
[6] This brings to the
fore the view expressed by Brig Labuschagne which was heavily relied
on by the court quo as a ground for
refusing bail, that “any
individual who has already exhibited a tendency to ignore legal
restrictions, such as protection
orders, poses a high risk to ignore
other legal restrictions, such as bail or parole conditions”. I
do not think that the
view can unreservedly be accepted in the
circumstances of this case: Labuschagne has not interviewed the
appellant, he has evidently
not considered the lapse of time between
the protection order and the incident and moreover in particular, the
conduct of the appellant
outside the sphere of a strained
relationship. In this regard an affidavit by the employer of the
appellant was filed stating that
the appellant maintained sound inter
work relationships with staff members and that he coped well under
stressful circumstances.
I am accordingly not prepared to accept as a
generalised conclusion that the appellant constitutes a high risk of
evading trial.
[7] Much was made of the
appellant’s suicide attempt in refusing bail at the first bail
application. Again, the incident should
be viewed in its proper
perspective: in this regard Dr Matja’s opinion that the risk of
suicidal behaviour as at present,
is low, in my view, deserves
preference, which he motivates as follows: “Whilst he (the
appellant) has a previous serious
attempt of suicide, it is my
opinion that this occurred during a period of uncharacteristic
behaviour for which he has no clear
recollection. Furthermore, this
suicidal behaviour occurred in a particular context of his relations
to his girlfriend and has
not occurred in any other situation before.
Suicidality is thus not a frequently occurring behaviour in his
behavioral repertoire
of dealing with stressful situations”.
Finally, there is no evidence of suicidal behaviour or a tendency to
violence in the
appellant’s present situation in prison which,
although controlled and supervised, must be stressful. I am
accordingly unable
to find that the safety of the appellant will be
jeopardised by his release on bail.
[8] I am satisfied upon a
consideration of all the facts of this matter that the Magistrate has
misdirected herself in affording
too much weight and failing to
consider the aspects I have referred to, in their proper perspective.
It follows that this court
is at large to consider the question of
bail afresh. The appellant’s defence to be raised at the trial
has been disclosed
as a reliance on non-pathological automatism.
Consultations with experts outside the prison environment therefore
are inevitable.
The matter is ripe for hearing and the witnesses have
made statements. Having regard to the factors set out in
s 60(4)
of
the CPA it in my view will be in the interests of justice to permit
the appellant’s release on bail. I am moreover satisfied
that
such risks as the allowance of bail may present can properly be taken
care of by imposing appropriate conditions, which is
what I propose
to do.
[9] In the result I make
the following order:
1.
The appeal is upheld.
2. Bail is fixed in the
sum of R15 000,00 cash to be deposited with the Registrar of this
Court. Upon the deposit of the said amount
and surrendering his
passport to the investigating officer in this case, Constable TC
Ntembu, or the Registrar of this Court, the
accused is to be released
on the following conditions:
2.1 That he attends and
appears in this Court on 30 January 2012 at 10h00 and that he remains
in attendance until excused by the
court.
2.2 That he in person
attends and reports to the said investigating officer at the
Douglasdale Police station or to such Police
station and police
official as the investigating officer may designate, on every Monday,
Wednesday and Friday between the hours
of 16h00 and 19h00.
2.3 That he refrains from
coming into contact with any of the state witnesses whose names
appear on the List of Witnesses having
been furnished to the
appellant.
2.4 That he will keep the
investigating officer informed of any change of his residential
address, whether temporary or permanent,
or of any intention to leave
the Gauteng area for a period of more than 24 hours.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL
FOR THE APPELLANT
ADV SW VAN DER
MERWE
COUNSEL
FOR THE RESPONDENT
ADV
AA MULAUDZI
DATE OF HEARING 7
DECEMBER 2011
DATE OF JUDGMENT
7 DECEMBER 2011