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[2015] ZAGPJHC 212
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Tsotetsi v S (A265/2015) [2015] ZAGPJHC 212 (17 September 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A265/2015
DATE:
17 SEPTEMBER 2015
In
the matter between:
TUMELO
MICHAEL
TSOTETSI
..........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MUDAU
AJ:
[1]
This is a bail appeal as intended by virtue of the provisions of s65
of the Criminal Procedure Act 51 of 1977 (“the Act”).
The
appellant in this case and others appeared before the regional court,
Germiston, for purposes of a bail application, on various
charges
that included 4 counts of murder, robbery as well as possession of a
firearm. In terms of s75 (1) (c) of the Act, he has
since been
arraigned for trial before this court together with 2 others on a
total of 11 charges (including the ones referred to
above) arising
from an incident that occurred on 26 September 2013 at Wadeville,
Germiston. On 12 November 2013 the appellant unsuccessfully
applied
for bail. On 4 July 2014 his application to be released on bail
supposedly on new facts also failed.
[2]
In this case the appellant appeared on charges that form part of a
category of offences falling under Schedule 6 of the Act
as amended.
S 60 (11) of the Act provides:
"(11)
Notwithstanding any
provision of this Act, where an accused is charged with an offence
referred to -
(a) 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
exceptional circumstances
exist which in the interests of justice permit his or her release..."
[3]
S60 (11) has been subjected to judicial interpretation since its
introduction in numerous judgments. In
S
v Vermaas
[1]
,
Van
Dijkhorst J stated (at 530C-G) the following, which I respectfully
agree with:
“
The
amendment of the
Criminal Procedure Act was
passed amidst a
full-blown debate about bail, bail conditions and the onus in bail
cases. There were also conflicting cases in
the Provincial Divisions
on the question of the onus. In the circumstances one must accept
that the wording of
s 60
as a whole and
s 60(11)
in particular was
well chosen. Significant is the difference in wording between
s
60(11)
and the sub-sections which precede it.
Section 60
is of
general application but
s 60
(11) is an exception to the general
rule. The general rule set out in
s 60(1)(a)
is that the accused is
entitled to be released on bail unless the court finds that it is in
the interests of justice that he be
detained in custody. That
wording, in my view, creates an onus. The onus rests upon him who
asserts that the accused should not
be released, that is the State.
In cases of doubt the accused goes free.
The
converse is the case where
s 60(11)
is applicable, It is expressly
worded as an exception by the use of ‘notwithstanding any
provision of this Act’. It
is limited to only a number of
crimes stated in Schedule 5 and commission of crimes set out in
Schedule 1 while on bail. It is
imperative, ‘the court shall
order the accused to be detained’. The accused is called upon
to satisfy the court that
the interests of justice do not require his
detention in custody. Clearer wording cannot be sought for an onus on
the accused.”
The law therefore is
that an onus is on a bail applicant to satisfy the court that
exceptional circumstances exist, which in the
interests of justice do
not require his or her detention in custody in respect of Schedule 6
offences.
[4]
It is to all the facts, including the new facts, as well as all
other facts contemplated in section 60 of the Act to which
I now turn
with a view to determining whether exceptional circumstances exist
which, in the interests of justice, permit the appellants'
release,
see
Vermaas
[2]
;
S
v Mohammed
[3]
;
S
v Petersen
[4]
.
The facts, in brief as discerned from the affidavit of the
investigating officer that led to the arrest of the appellant are as
follows: On 26 September 2013 following a tipoff, members of the
Metro police took positions at a business premises in Wadeville,
Germiston. The information provided by the informant was that there
was a planned armed robbery. The target was a company manager
whose
role it was to take money for banking that day.
[5]
The manager swapped cars with members of the police. Two officers
drove in the vehicle that was used to transport money to
the bank, a
Kia Serato sedan, disguised as the manager and an employee
respectively. Along the way, they were intercepted by a
motor vehicle
driven by the suspected robbers who started shooting at their car. In
the process, the 2 officers were shot and one
fatally. Since there
were already members of the SAPS in the vicinity, a shootout ensued
between the police and the robbers. During
the process the 2 Metro
police members already shot, were removed from the car that carried
the cash by the robbers who then sped
off. The Kia Serato was along
the way blocked off the road by the police. A shootout followed
between the police and the suspected
robbers. Three of the suspected
robbers were fatally wounded. An amount of R16000-00 destined for the
bank and firearms that belonged
to the Metro police who were shot
were recovered. The appellant was one of the two suspected robbers in
the Kia Serato arrested
at the scene.
[6]
The appellant did not tender
viva voce
evidence but relied on
sworn affidavits in both instances. In his first affidavit the
appellant confirmed that he was arrested
on the date consistent with
the respondent’s version. Briefly stated, he placed his
personal circumstances and other relevant
factors as envisaged in
terms of s60 (4) to (9) of the Act. He was 32 years old at the time,
unmarried but a father to a minor
child. He worked as a packer. He
has no personal or other interests outside the country. He asserted
that he would not evade his
trial, influence or intimidate witnesses.
He had no intention to jeopardise the objectives or proper
functioning of the criminal
justice system. It is his evidence that
he did not commit the offence but was a victim of circumstances. He
denies that he was
arrested at the scene as alleged by the police.
[7]
In his bail application on new facts he disclosed his HIV status. He
asserted that his health was deteriorating as he was not
receiving
the necessary treatment or healthy diet in prison. As a result of his
prolonged incarceration, he suffers from immense
emotional, physical
and financial hardship which extended to his family. In his view, the
state did not have a strong case against
him. It was merely a case of
mistaken identity as he was in the wrong place, at the wrong time.
[8]
S 65(4) of the Act provides:
“
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.”
The
appellant still has to satisfy me, on a balance of probabilities,
that the decision of the learned magistrate was wrong (
S
v Hlongwa)
[5]
.
[9]
In both applications the learned magistrate refused bail as he was
not inclined to accept the argument that the state’s
case is
weak. The magistrate found that the only new aspect he had to
consider in the second bail application was the appellant’s
HIV
status. In refusing bail, he was of the view that the appellant could
receive adequate treatment whilst in prison and endorsed
the warrant
of detention accordingly.
[10]
It is not without significance that the appellant chose, as it is his
constitutional right, to tender his evidence through
affidavits, as
opposed to oral testimony, in which event he would ordinarily have
been subjected to cross-examination to test the
veracity thereof. The
court below was therefore compelled to consider both applications on
the strength or otherwise of the averments
contained in his
affidavits. A bail applicant cannot be criticised for electing to
present his case by way of an affidavit and
not orally as the
appellant did. However, it is trite that averments contained in an
affidavit have little probative value when
compared to oral evidence
which can be subjected to cross examination (
S
v Pienaar
[6]
).
[11]
The attack against the magistrate’s refusal of bail as per the
notice of appeal can be summarised as follows:
1.
The magistrate had erred in refusing to
grant the appellant bail. His discretion was not exercised
judicially.
2.
The state has no
prima
facie
case against the appellant.
3.
The magistrate should have considered that
the appellant is emotionally and economically bound to the
jurisdictional area of the
court.
4.
The magistrate ought to have found that the
absence of a strong case against the appellant constitutes an
exceptional circumstance
justifying the appellant’s release on
bail.
5.
The appellant is not a flight risk and
should have been granted bail with appropriate conditions.
[12]
In
Mathebula
v S
[7]
Heher
JA had the following to say:
“
But
a State case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test.
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be acquitted of the charge (S v
Botha
and another
[8]
;
S v
Viljoen
[9]
.
That
is no mean task, the more especially as an innocent person cannot be
expected to have insight into matters in which he was
involved only
on the periphery or perhaps not at all. But the State is not obliged
to show its hand in advance, at least not before
the time when the
contents of the docket must be made available to the defence; as to
which see
Shabalala
and others v Attorney-General of Transvaal and another
[10]
.
Nor is an attack on the prosecution case at all necessary to
discharge the onus; the applicant who chooses to follow that route
must make his own way and not expect to have it cleared before him.
Thus, it has been held that until an applicant has set up a
prima
facie
case
of the prosecution failing there is no call on the State to rebut his
evidence to that effect (
S
v Viljoen
[11]
)”
.
[13]
In this matter, the denial of complicity and the allegation that he
was not arrested at the scene as the police averred, but
conceded in
argument, rested solely on his say-so with neither witnesses nor
objective probabilities to strengthen them (
Mathebula
-
above). The objective factors
prima
facie
, as the magistrate correctly
found, show that the appellant was arrested at the scene of the
shootout between the police and the
suspected robbers. The remainder
of the personal factors urged on this court, are not unusual but
common place. This includes the
allegation regarding the appellant’s
HIV status. In any event singly or together, they do not warrant the
release of the
appellant in the interest of justice. In the contrary
the magistrate must be commended for endorsing the warrant of
detention accordingly
and thus brought the appellant’s plight
to the relevant prison authorities. To this end
s12
(1) of the
Correctional Services Act 111 of 1998
provides that:
“
The
department must provide, within its available resources, adequate
healthcare services, based on the principles of primary health
care
in order to allow a very intimate to lead a healthy lifestyle.”
Finally,
the recital of the provisions of
ss
(4)
of
s
60
of
the Act, as the appellant did, without the addition of facts that add
weight to his
ipse
dixit
,
does not establish any of those grounds.
[14] In the
premises, the appeal is dismissed.
T
P Mudau
Acting
Judge of the High Court,
Gauteng
Local Division
Johannesburg
Appearances
For
the Appelant Mr H Saayman
Instructed
By Saayman Attorneys
For
the Respondent N Mpolweni
Instructed
By The DPP
Date
of hearing 17 September 2015
Date
of judgment 17 September 2015
[1]
1996 (1) SACR 528
(T)
[2]
supra
[3]
1999
(2) (SACR) 507 (C)
[4]
2008
(2) SACR 355 (C)
[5]
1979 (4) SA 112
(D)
[6]
1992 (1) SACR 178
(W) at 180
h
).
[7]
[2010]
1 All SA 121
(SCA at para [12]
[8]
2002 (1) SACR 222
(SCA) at 230
h
,
232
c,
[also
reported at
[2002]
2 All SA 577
(A)
– Ed]
[9]
2002 (2) SACR 550
(SCA) at 556
c
[also
reported at
[2002]
4 All SA 10
(SCA)
– Ed]).
[10]
1996 (1) SA 725
(CC) also reported at
[1996]
1 All SA 64
(CC)
– Ed]
[11]
supra
at
561
f
–
g