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[2014] ZAGPJHC 210
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Ditlhakanyane and Others v S (SS43/2012) [2014] ZAGPJHC 210; 2015 (1) SACR 437 (GJ) (4 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: SS43/2012
DATE:
04 AUGUST 2014
REPORTABLE
In the matter
between:
ISAAC
DITLHAKANYANE AND EIGHT OTHERS
................
Applicants
And
THE
STATE
...........................................................................
Respondent
JUDGMENT
MOKGOATLHENG J
INTRODUCTION
(1) The applicants
have instituted an application pursuant to section 49 G (3) of The
Correctional Services Act 111 of 1998
( as amended) (The Act) to be
released from the remand detention facility in which they are
presently incarcerated whilst awaiting
the finalization of their
trial.
THE FACTUAL
MATRIX
(2) The first to the
seventh applicants were arrested on 1 and 2 June 2011, the eight
applicant on 12 July 2011, and the ninth applicant
on 31 March 2012.
Subsequent to their arrest the applicants were charged with
contravening
section 2(1)(e)(f)
read with
sections 1
,
2
(2),
2
(3),
2
(4)
and
3
of the
Prevention of Organized Crime Act 121 of 1998
by
“managing and conducting an enterprise through a pattern of
racketeering activity, money laundering, corruption, fraud
and theft
involving an amount of R2 million rand.”
(3) Subsequent to
their arraignment the applicants unsuccessfully launched bail
applications. The first, second and eighth applicants
appeals against
the refusal of bail were also unsuccessful. On 26 August 2013, the
first to eighth applicants launched an application
in terms of
section 49
G (3) of The Act. The application was dismissed. The
trial which commenced on 27 January 2014 is proceeding and has not
been finalized.
THE LEGAL FRAME
WORK
(4) Section 49G (1)
of The Act provides: “the period of incarceration of a remand
detainee must not exceed two years from
the initial date of admission
into the remand detention facility, without such matter having being
brought to the attention of
the court concerned in the manner set out
in this section:…” ; and
(i)section 49G (3)
provides: ‘any remand detainee whose detention will exceed the
period stipulated in subsection (1) must
be referred to the relevant
court by the head of the remand detention facility or correctional
centre, as the case may be, to determine
the further detention of
such person or release under the conditions appropriate to the case.”
(5)In terms of
article 2(b), Justice Crime Prevention and Security Protocol (JCPS)
the objective is “to ensure that the further
detention of a
remand detainee is considered by a court before the expiry of a
period of two years, and is reconsidered at least
annually each 1
year thereafter,… ;
(i)article 6(2)
provides: “In considering the further detention of the remand
detainee, the normal considerations and processes
relating to bail in
terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) apply;
and
(ii)article 8(1)
regarding the role of presiding officers provides: “The normal
principles and requirements relating to bail,
as set out in the
Criminal Procedure Act, 1977 (Act 51 of 1977), apply when the further
detention of or release of a remand detainee
is considered in terms
of the requirements of
section 49G
of the
Correctional Services Act.”
(6)The
charges
preferred against the applicants fall within the purview of Schedule
5 of the
Criminal Procedure Act, consequently
, because of the
conjunctive applicability of
section 60
of The
Criminal Procedure Act
to
section 49
G of The Act, the applicants bear the onus to show that
their release from the remand detention facility will not prejudice
the
interests of justice. Conversely, because the further detention
of the applicants limits and curtails their constitutional right
to
liberty, there is a corresponding onus on the respondent to show that
the release of the applicants from the remand detention
facility will
not be in interests of justice.
THE RESPONDENT’S
PRIMA FACIE CASE
(7) The
respondent’s opposition to the application is predicated on the
affidavit of Captain Jacobus Hansen, the investigating
officer. The
applicants - except the fourth and sixth applicants who presented
their evidence on affidavit, - made submissions
through their counsel
from the bar.
(8) The respondent’s
case is set out in Captain Jansen’s affidavit in which states:
“The applicants were arrested
after the discovery of a
syndicate whose members have allegedly stolen R2 million from banking
accounts held by the public at various
Post Office outlets. The first
applicant is allegedly the leader of the syndicate. Through the
assistance of Post Office employees,
the first applicant obtained
details of Post Office banking accounts in which vast amounts of
money were deposited and held. Identity
documents and passports were
allegedly falsified to access and divert the funds deposited in such
banking accounts whereafter,
the funds held in the said banking
accounts were unlawfully depleted through the connivance of the
second to ninth applicants who
were formerly in the employ of the
Post Office.
(9)The details of
some of the targeted banking accounts including references to the
Post Office banking account numbers, balances,
account holder’s
names, surnames, identity numbers and residential addresses were
allegedly discovered stored in the applicants’
cell phones.
(10) The discovery
of the various banking account holders personal details are allegedly
linked to the 2008 investigation conducted
by the Post Office when a
number of fraudulent banking accounts allegedly opened and overnight
inflated with thousands of rands
were allegedly discovered. The
details relating to these 2008 unlawfully opened Post Office banking
accounts were found on the
cell phone in the first applicant’s
possession. After his arrest, the first applicant allegedly attempted
to bribe Post Office
Officials to release him. Thereafter the first
applicant allegedly on two occasions attempted to escape from
custody.
(11) The first
applicant was convicted of using different names in committing fraud
and has three previous convictions for fraud.
The first applicant has
allegedly committed fraud for a continuous period of 3 years against
the Post Office, consequently, the
possibility of the first applicant
engaging a further criminal conduct is a very real probability.
(12) The first
applicant has access to persons who are able to fraudulent issue
falsified identity documents and passports. The
evidence of a former
member of the syndicate a certain David Motsowane in the fraudulent
acquisition of forged documents implicated
the first applicant. The
possibility that the first applicant can obtain falsified documents
to flee the Republic of South Africa
cannot be excluded. The first
applicant alleged that he owns property 793 Vlakfontein but same is
not registered in his name. Only
the sixth and ninth applicants own
the properties they resides at. The rest of the applicants have
leased the properties they resided
at. The second and ninth
applicants have been dismissed by the Post Office following a
disciplinary inquiries.
(13) The applicants
are charged with serious offences and face the possibility of lengthy
imprisonment. The respondent has a strong
case against the applicants
based on documentary evidence which allegedly shows their involvement
in commission of the offences
obtained from Post Office branches
where the applicants were employed. Incriminating evidence of the
particulars of the banking
account holders was allegedly found on the
second to ninth applicants’ cell phones.
(14) Cell phone
communications between the applicants shows that they knew each other
and contacted with each other. The applicants
are familiar with the
identity of the witnesses which include the lawful banking account
holders, and the Post Office employees
who allegedly collaborated
with the applicants in the commission of the offences.
(15) The case is at
a crucial point in the proceedings. The respondent intends to lead
evidence of the verbal and written communications
between the
applicants. If one of the applicants should abscond at this stage of
the proceedings, the respondent will be severely
prejudiced and
hampered in the presentation of its case. The Presiding Judge has
requested that the case be finalized in the third
term.”
THE FIRST
APPLICANT’S CASE
(16) Counsel argued
that the first applicant disputes that the respondent has established
a prima facie case against him and believes
that he will be
acquitted. He admits that he has three previous convictions for
fraud. He has a fixed place of abode and owns immovable
property
which generates an income of R30 000.00 per month.
(17) He will not
conceal or destroy evidence. He will not intimidate or influence the
witnesses. There is no credible evidence to
substantiate the
allegation that he would undermine the functioning of the criminal
justice system. If he is released on bail in
the amount of R75 000 or
R1000 000 he undertakes to stand his trial and comply with any bail
conditions the court may impose.
THE SECOND
APPLICANT’S CASE
(18) Counsel
submitted that the second applicant will abide the court’s
decision. He joined in the initial section 49 G (3)
application
because at that stage the trial had not yet commenced. The trial has
now commenced, consequently, there is no cogent
reason to launch a
second section 49 G (3) application.
THE THIRD, FIFTH
AND EIGHTH APPLICANTS CASE
(19) Counsel elected
to address the court on the interpretation of section 49G, the
conjunctive applicability of sections12 and
35 of The Constitution
and
sections 60
and
342A
of The
Criminal Procedure Act 51 of 1977
of
The Act, and in determining whether the release of the applicants
would not prejudice the interests of justice.
Further counsel
elected not to present the personal particulars and circumstances of
the applicants to the court. However, argued
that there was no legal
justification for the further detention of the applicants, because if
released on bail they undertake to
stand their trial and comply with
any bail conditions the court may impose.
.
THE FOURTH
APPLICANT’S CASE
(20) In July 2011
she unsuccessfully launched a bail application. On 26 August 2013 she
instituted a section 49 G (3) application
before AJ Naidoo who held
that her further detention was warranted. In November 2013 she
unsuccessfully launched a bail application
predicated on new facts.
(21) Although the
trial commenced on 27 January 2014 and is set down for the entire
third term, the respondent has indicated that
it intends to call
further twenty witnesses, consequently the trial will endure for a
considerable time before it is finalized.
The respondent has
preferred nine charges against her and is only implicated in three
transactions. In her capacity as the acting
branch manager at the
North Riding Post Office she instructed a teller to execute these
transactions.
(22) Her release
will not endanger public peace and security. She is not a flight
risk. She does not possess any travelling documents.
She has no
family outside the borders of South Africa. She has no previous
convictions or outstanding cases against her. The investigation
has
been completed. She will not influence or intimidate witnesses. She
will stand her trial.
(23) She is a single
parent. Her prolonged incarceration is infringing her 13 years old
daughter’s constitutional right to
parental care. She has a
fixed place of abode. Her further detention is not necessary. She can
afford to pay bail in the amount
of R5 000 and undertakes to comply
with any bail conditions imposed by the court.
THE SIXTH
APPLICANT’S CASE
(24) In July 2011
she launched an unsuccessful bail application. In August 2013 she
instituted a section 49 G (3) application before
AJ Naidoo who held
that her further detention was warranted. In November 2013 she
instituted an unsuccessful bail application predicated
on new facts.
(25) Although the
trial has commenced it is evident that it will endure for a
considerable period of time before it reaches finality.
She is
innocent and disputes the charges against her. She is charged with 9
counts. Although the respondent alleges that she was
involved in two
transactions amounting to R19 000, there is no prima facie case
established against her. She is innocent and disputes
the charges
against her.
(26) The prolonged
trial is extremely frustrating to her and her family. She does not
pose a danger to public peace, order and security.
She is not a
flight risk. She does not possess travelling documents. She will
stand her trial. She has no previous convictions
or outstanding
criminal cases against her. The investigation has been completed. She
will not influence or intimidate witnesses.
(27) Due to her
prolonged incarceration her husband has instituted divorce
proceedings against her. She has two children born of
the marriage, a
daughter and a son aged seventeen and seven years respectively who
stay with her husband and mother.
(28) She is unable
to provide for her children whilst in remand detention. Her mother is
a pensioner and is struggling to maintain
her children.
Her husband is not
assisting her mother with the maintenance of her children. She has a
fixed place of abode. Her further detention
is not necessary. If
released she can afford to pay an amount R5 000 in respect of bail
and undertakes to comply with any bail
conditions imposed by the
court.
(29) The respondent
alleges that she and the fourth applicant contravened the prevention
of Organized Crime Act, in pursuance of
an enterprise or syndicate no
prima facie case has been established against them. Although the
respondent alleges that their cell
phone records constitute prima
facie prof that they communicated with the other applicants, no
evidence has been adduced that shows
that their cell phone numbers
linked them to the alleged syndicate. Although she is charged with
being involved in six transactions,
she only executed three
transactions.
(30) Although the
respondent alleges that it has a strong case, against her there is no
documentary evidence linking her with the
offences. The respondent
relies on the execution of transactions during the course and scope
of her duties as a teller, but there
is no evidence that as a teller
she knew that the persons involved in the withdrawal of the funds
were not the lawful Post Office
banking account holders. The
respondent alleges that the cell phone records show that there was
communication between the applicants
but has not shown or established
the existence of the alleged syndicate.
THE SEVENTH AND
NINTH APPLICANTS CASE
(31) Counsel elected
not to place the seventh applicant’s personal particulars and
circumstances before court . Counsel submitted
that the respondent is
obliged to furnish reasons for the seventh applicant’s
continued incarceration. Although the respondent
alleges it has
incriminating evidence found on the seventh applicant’s cell
phone records after forty five days of evidence
adduced at the trial,
there is no evidence linking the seventh applicant to any of the
charges.
(32) The ninth
applicant is married in community of property and has two children
aged eleven and eight years respectively. He resides
at his father’s
house. He was employed as a teller at the Hillbrow Post Office
outlet. He launched an unsuccessful bail application.
He is not
flight risk. He has no family outside the country. There is no legal
justification for his further detention. If released
on bail he will
comply with any bail conditions imposed by the court.
THE LEGAL
SUBMISSIONS BY THE APPLICANTS COUNSEL
(33) The court in a
section 49 G (3) application has a duty to enquire whether there is
legal justification for the further detention
of the applicants. The
court is obliged not only to consider and evaluate the prejudice the
respondent may suffer, it must also
equally consider and evaluate the
prejudice the applicants may suffer as a result of their further
detention by having due regard
to applicants constitutional rights
enshrined in section 35 of The Constitution and the Bill of Rights in
Chapter 2 of The Constitution.
Counsel further
submitted that there was no onus reposing on the applicants to
justify their release from further detention, the
onus rested on the
respondent to lawfully justify the applicants continued detention.
THE SCOPE AND
AMBIT OF SECTION 49 G
(34) The enactment
of section 49 G of The Act has as its basis, the protection of the
rights contained in the Bill of Rights, Chapter
2 of the Constitution
of the Republic of South Africa, namely the right to freedom and
security and the right not to be deprived
of freedom arbitrarily and
without just cause. This section was introduced as an overarching
monitoring mechanism which empowers
the heads of detention facilities
or correctional centres to exercise proactive oversight authority
over awaiting trial detainees
in order to ensure that their
constitutional rights to liberty, human dignity, physical health or
safety and the speedy prosecution
and conclusion of their trial are
not infringed.
(35) The purpose of
section 49 G is to strike a balance between the interests the
accused’s constitutional right to liberty
and the interests of
justice because pending the finalization of an accused’s trial,
he or she is presumed to be innocent
until proven guilty. Section 49G
of The Act enjoins the court to conduct proactive interlocutory
judicial enquiry to determine
and establish whether the continued
further detention or the release of an accused who was previously
denied bail as an awaiting
trial detainee or was denied bail after
his or her trial had commenced would be in the interests of justice.
(36) Pursuant to
section 35(1)(f) of The Constitution everyone who is arrested for
allegedly committing an offence has the right…to
be released
from detention if the interests of justice permit, subject to
reasonable conditions.”
(i) section 35(2)
provides for “The right of a detained person to challenge the
lawfulness of his/her continued detention;
and
(ii) section 35 (3)
(d) provides for “the right of an accused person to have his
or her trial begin and conclude without
unreasonable delay.”
(37) The continued
further detention of an accused after an unsuccessful bail
application although constitutionally contextualized
amounts to a
deprivation of liberty, it does not imply an imposition of a penal
sanction, because such continued further detention
is non-penal in
essence and purely incidental to the dictates of the interests of
justice.
It follows that
although section 35 of The Constitution maximizes personal liberty
section 36 limits a person’s liberty which
is protected by
section 12 of The Constitution. In S v Dlamini; S v Dladla and
Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC), the
Constitutional Court held:
“… the
presumption of innocence operates in favour of an accused even when
there is a strong prima facie case against
him or her.
While the
presumption of innocence is critical it is one of the factors the
court has to consider in evaluating whether the release
of an accused
from detention will not prejudice the interests of justice.”
THE STRENGTH OF
THE RESPONDENT’S CASE
(38) In the
determination whether the applicants should be released from remand
detention pursuant to section 49 G (3) of The Act,
the constitutional
imperative of an accused’s presumption of innocence until
proven guilty does not absolutely bar the court
from conducting an
inquiry into the merits of the sustainability of an accused’s
defence against the charges he or she is
facing.
(39) The charges
against the applicants are serious because if convicted the
applicants are liable to be sentenced to lengthy terms
of
imprisonment. A court in considering the release of the applicants
pursuant to section 49 G (3) has to ensure that despite the
strength
of the respondent’s case and the probability of conviction, the
consideration of the release or further detention
is predicated on
whether the interests of justice will not be undermined.
(40) In considering
the release or further detention of an accused, the overriding
constitutional question is, is it in the interests
of justice that
the applicants who have a constitutional right to liberty and the
presumption to be innocent until proven guilty
be released from
detention in spite of the fact that their invocation of the right to
be presumed to be innocent is to a substantial
extent dissipated or
extinguished due to the unanswerability of the strength of the
respondent’s case. In my view, the strength
of the
respondent’s case, the probability of conviction due to the
unmeritorious unsustainability of the applicants defence
are relevant
factors to be considered in a section 49 G (3) application.
(41) Because of the
inquisitorial nature of a section 49 G application, the court is
obliged to consider the reasonable prospects
of success of the
probative sustainability of the applicants defence as to whether
objectively considered and having regard to
the strength of the
respondent’s case (and without pronouncing on the guilt or
innocence of accused) can it be said that
the accused’s defence
is sustainable having regard to the defence’s paucity of
sustainability because such palpably
unsustainable defence no longer
operated in favour of the applicants. Should the inquiry reach such
conclusion, the inference would
objectively justifiably be persuasive
that the release of the applicants would not be in the interests of
justice.
(42) Because the
applicants are obliged to establish a defence which has reasonable
prospects of success at the trial, where an
accused carries the
burden of proof pursuant to section 49 G (3) of The Act, having
regard to the conjunctive applicability of
the provisions of
section
60(11)(a)
of the
Criminal Procedure Act ‘it
is insufficient
for an accused who…wishes to rely on the weakness of the
State’s case to simply show that the State’s
case is
weak. The accused must go further, ie show that the case is
exceptionally weak and this must be done by showing on a balance
of
probabilities that [he] or she will be acquitted’ (S v Mazibuko
& Another
2010 (1) SACR 433
(KZP) at [23].
(43) The court is
obliged to investigate and determine whether there was a delay or a
failure in diligently prosecuting the case,
or whether such delay was
due to the dilatoriness, negligence or mala fides of the respondent.
The inquiry is similar to that provided
for in terms of
section 342
(A) of The
Criminal Procedure Act. The
further inquiry is whether the
applicants have presented new, special or extraordinary circumstances
or facts which have arisen
and which militating against the continued
further detention of the applicants.
(44) The cardinal
issue is that the respondent has led evidence and contends that such
evidence is cogent and credible and has the
possibility of
establishing an unassailable case against the applicants who in
response thereto in their defence the applicants
only make bald
denials without the specificity of such defence being set out. In
assessing the prima facie strength of the respondent’s
case the
court is constraint not to make a provisional finding of guilt or
innocence. The applicants have all made admissions in
terms of
section 220
of The
Criminal Procedure Act pursuant
to which it has
been proven that they were in possession of the names, surnames,
addresses, account numbers and other details of
the persons whose
Post Office banking accounts were defrauded.
(45) The respondent
through cellular telephone records apparently has the possibility of
establishing that the applicants communicated
with each other,
consequently, the inference may be drawn that the applicants because
they allegedly communicated with each other
and allegedly had in
their possession the particulars and details of the Post Office
banking account holders in their cellphones,
allegedly colluded in
the alleged fraudulent establishment of the fraudulent Post Office
banking accounts and the alleged fraudulent
transfer of the deposits
allegedly held in those Post Office banking accounts into the
allegedly fraudulently established Post
Office banking accounts, and
the alleged subsequent fraudulent withdrawal and appropriation of the
funds from the fraudulently
opened Post Office banking accounts, the
probability cannot be excluded that the applicants were allegedly
members of a syndicate
allegedly conducting an enterprise.
(46) The applicants
except the second applicant who will abide the court’s
decision, blandly espouse their innocence by claiming
that the
respondent has as yet not proven a prima facie case against them.
None of the applicants have set out a probable sustainable
defence
against the allegations made by the investigating officer Captain
Jansen in his affidavit.
Having regard to the
strength of the respondent’s case and the probability of
conviction and the imposition of a lengthy custodial
sentence, the
applicants carry the burden to prove that their release would be in
the interest of justice. It is insufficient for
the applicants to
blandly state that the respondent’s case is weak or that thus
far the respondent has not led incriminating
evidence against them.
The applicants are obliged to show that the respondent’s case
is exceptionally weak, that on the
balance of probabilities they will
not be convicted.
(47) A court in
considering the release of the applicants pursuant to
section 49
G
(3) of The Act has to ensure that the fact that the strength of the
State’s case and the probability of conviction may
be probable,
this does not displace the central issue, of whether the interests of
justice permit release of the applicants on
bail. See S v Malumo &
111 Others (2)
2012 (1) NR 244
(HC) at [30].
(48) The factual
status quo matrix since the 20 August 2013 section 49 G (3)
application before AJ Naidoo has not changed. The applicants
have not
contended that since 20 August 2013 there are new facts or
circumstances which have arisen except that the duration of
the
applicants detention has endured for a further year. The applicants
do not dispute the fact that the delay in the prosecution
of their
trial was not attributable to the negligence, fault or mala fides of
the respondent in the conduction of the prosecution
of the case.
(49) In considering
whether the release of the applicants would not be prejudicial to the
interests of justice the court has taken
into account:
(a) the probable
period of time the trial is still to endure until finalization;
(b)the reasons
predicating any delay in the prosecution and finalization of the
trial;
(c)the nature and
the gravity of the charges the applicants are facing;
(d)the strength of
the case against the applicants and the probability that the
applicants as a consequence thereof may attempt
to flee or evade to
stand their trial; and
(e)the severity of
the sentence likely to be imposed should the applicants be convicted.
(50) The interests
of justice do not permit the release from detention of an applicant
were:
(a) there is the
likelihood that the applicants were to be released from detention
they would undermine or jeopardize the objectives
of the proper
functioning of the criminal justice system.
THE ORDER
(51) In the premises
the court finds that it would not be in the interests of justice to
release the applicants from remand detention
facility, consequently
the application is dismissed.
Thus done and made
on 4 August 2014
MOKGOATLHENG J
JUDGE OF THE
SOUTH GAUTENG HIGH COURT
TO:
THE REGISTRAR OF
THE COURT
JOHANNESBURG
Date of Hearing:
14 July 2014
Date of Delivery:
4 August 2014
For the
Respondent: Adv. Williams
The First
Applicant: Adv. Lawlor
The Second
Applicant: Adv. Baloyi
The Third
Applicant: Adv. Nobengula
The Fourth
Applicant: Adv. Roestof
The Fifth
Applicant: Adv. Nobengula
The Sixth
Applicant: Adv. Roestof
The Seventh
Applicant: Adv. Pillay
The Eight
Applicant: Adv. Nobengula
Seventh
Applicant: Adv. Nobengula
Ninth Applicant:
Adv. Pillay