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[2016] ZAGPJHC 173
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Hewitt v S (SS91/2014) [2016] ZAGPJHC 173; [2016] 3 All SA 784 (GJ) (22 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS91/2014
DATE:
22 JUNE 2016
In
the matter between:
HEWITT,
ROBERT ANTHONY
JOHN
................................................................................
Applicant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
Adv Green
who
represents the accused approached me shortly before 10am at the
request of the Deputy Judge President to allocate, as the senior
criminal court judge on duty, a judge to hear an application for the
extension of bail pending an application for direct access
to the
Constitutional Court.
2.
The reason for her having to approach the
DJP was because the trial judge, my brother Bam J, was on long leave
3.
I was already dealing with a criminal case
which was due to start at 10am. Counsel impressed on me the urgency,
advising that the
investigating officer told her that the accused
would be arrested if a judge could not be secured to hear the
application by 11am.
The accused had come to hand himself over to the
Registrar as the Supreme Court of Appeal (SCA) had refused his
petition to appeal
but he had also brought the application for
extension of bail.
In
view of the apparent deadline imposed I decided it preferable to take
the case immediately.
4.
On arriving in court I attempted to
establish the State’s attitude to the bail application and
indicated that someone representing
the State would have to be in
court, even if only to confirm that there would be no opposition.
This led to a short adjournment
and I proceeded with the other case.
Counsel later advised that Adv Coetzee, who had handled the trial,
was on her way and that
the instruction was to oppose bail.
5.
When the matter eventually proceeded Adv
Coetzee informed the court that the application could not be for the
extension of bail
since the accused had already been arrested. This
was of concern since this court had already been seized of the matter
prior to
11am. It was then revealed that the accused had in fact been
arrested at about 10am while in court waiting for his application to
proceed. It also appears that the investigating officer refused to
accept the application to extend bail.
6.
It is evident that the effect of the arrest
precluded the court from deciding whether to extend bail. It was now
a question of whether
to grant bail. In cases where papers have been
served in order to obtain relief it would amount to a constructive
contempt if the
other party acted in a way that would have the effect
of frustrating the grant of an order, provided the other requirements
for
contempt were satisfied. Where another organ of state acts in a
manner which amounts to constructive contempt then concerns may
also
arise concerning a possible impingement of the separation of powers.
7.
The court therefore expressed concern at
the arrest being effected despite the accused meeting the deadline.
The arrest of the accused
also meant that the court no longer had the
ability to consider any papers other than the application and, at the
request of the
court, the judgment of Bam J. It also meant that the
application required urgent disposal.
8.
In view of
Adv
Coetzee
for the State accepting that
the application could be regarded as a fresh one for bail without the
need to amend and that the State
did not intend to file an answering
affidavit, it became unnecessary to interrogate whether the State had
given a deadline and
whether its terms had been breached when the
accused was arrested in court while waiting for it to convene.
9.
In a material way the arrest of the accused
precluded the court from exercising an option it otherwise would have
had if the accused
was still on bail to adjourn and allow the State
to file an answering affidavit without necessitating the
incarceration of the
accused pending the outcome of the application.
10.
It must be borne in mind that the trial
judge will ordinarily preside in an application for bail pending
appeal. Ideally, when the
trial judge is unavailable, it would be
preferably for the judge seized with the bail application to gain a
better insight into
the record of the proceedings. Obviously this was
not possible in the present circumstances.
11.
The case therefore had to be dealt with as
an urgent application requiring a robust appraisal and speedy
determination with all
the inherent limitations that these factors
entail.
REQUIREMENTS
FOR BAIL
12.
It appeared to be common cause that the
accused had to demonstrate that there was an arguable case to take to
the Constitutional
Court.
13.
The accused submitted however that sections
60(1), (4) and (11) (a) of the Criminal Procedure Act 51 of 1977
(‘the CPA’)
did not apply because they only refer to an
offence of “
(r) ape or compelled
rape as contemplated in section 3 or 4 of the Criminal Law (Sexual
Offences and Related Matters) Amendment
Act, 2007”
(‘
the
Sexual Offences Act’)
whereas the
accused was charged and convicted of common law rape.
14.
This
argument overlooks that the Sexual Offences Act was introduced to
include and extend the common law crime of rape and that
in terms of
section 68 of that Act schedule 6 of the CPA was amended to replace
the common law crime of rape with offences under
ss 3 and 4 of the
Sexual Offences Act
[1]
. The
argument also overlooks that all the elements of common law rape with
which the accused was charged and convicted were statutorily
codified
and then extended by this Act.
15.
In terms of section 12(2)(b),(c), (d) and
(e) of the Interpretation Act 33 of 1957 a repealed provision remains
effective in respect
of anything done while it was in operation and
does not affect any punishment incurred in respect of any offence
committed under
the repealed law. The relevant provisions read:
12
Effect of repeal of a law
(1)
Where a law repeals and re-enacts with or without modifications, any
provision of a former law, references in any other law
to the
provision so repealed shall, unless the contrary intention appears,
be construed as references to the provision so re-enacted.
(2)
Where a law repeals any other law, then unless the contrary intention
appears, the repeal shall not-
(a)
…
(b)
affect the previous operation of any law so repealed or anything duly
done or suffered under the law so repealed; or
(c)
affect any right, privilege, obligation or liability acquired,
accrued or incurred under any law so repealed; or
(d)
affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against any law so repealed; or
(e)
affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, forfeiture
or
punishment as is in this subsection mentioned, and any such
investigation, legal proceeding or remedy may be instituted,
continued
or enforced, and any such penalty, forfeiture or punishment
may be imposed, as if the repealing law had not been passed.
16.
I
am satisfied that the accused, by reason of being charged and
convicted of a schedule 6 offence which has since been repealed
and
re-enacted, is required to demonstrate that in terms of section
60(1)
[2]
of the CPA it is in the
interests of justice to permit him to be released on bail, must
demonstrate that the provisions of section
60(4)
[3]
are not applicable to him and that exceptional circumstances are
present as contemplated under section 60(11) (a)
[4]
of that Act.
WHETHER
THE REQUIREMENTS OF s.60 HAVE BEEN MET
17.
The accused was previously granted bail
after he was convicted and sentenced. He has complied with all his
bail conditions. Adv
Coetzee correctly accepted that nothing had
changed to justify a reconsideration of the factors which led the
trial court to grant
bail on the basis that exceptional circumstances
existed and that it was in the interests of justice to grant bail,
having due
regard to the requirements of s.60(4).
She
however contended that that there was no jurisdictional basis upon
which the Constitutional Court could be seized of the matter
and
built this into an argument that there was no reasonable prospect of
success. .
PROSPECTS
OF SUCCESS
18.
The thrust of Adv Coetzee’s argument
is that the Constitutional Court would not entertain the application
for direct access
because the issue does not fall within its
jurisdiction as circumscribed by section 167 of the Constitution.
19.
Section 167(3) provides:
The
Constitutional Court-
(a)
is the highest court of the Republic; and
(b)
may decide-
(i)
constitutional matters; and
(ii)
any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point
of law of
general public importance which ought to be considered by that Court;
and
(c)
makes the final decision whether a matter is within its jurisdiction.
20.
The issue which the accused wishes to raise
is that there is new evidence which materially affects the outcome of
the case. It is
not disputed that the evidence only surfaced after
the SCA refused the petition for leave to appeal.
Reliance
is placed on a series of emails between the victim complainants of
the rape charges in count 1 and 2 and on which the accused
was
convicted. A third complainant is also referred to in the emails. She
was the victim of the indecent assault charge, being
count 3, and in
respect of which the accused was also found guilty.
21.
The emails originated in June 2012, which
was well before the accused was charged. It reveals that
conversations took place between
the two rape victims concerning the
charges they wished to bring against the accused. At face value it is
understandable that rape
victims would seek each other out. The
degradation, humiliation, scepticism and lack of support on the part
of family (as clearly
is evident in the case of one of the victims as
described in the judgment) and the need to find mutual support among
victims is
readily understandable, particularly considering how young
they were at the time of the offences with which the accused was
convicted.
22.
However the court relied on similar fact
evidence in support of the decision to convict. It appears that
the court was conscious
that similar fact may be manufactured and
considered the argument advanced on behalf of the accused that the
complainants had colluded.
At para 40 of the judgment the trial court
said:
“
In
my view there is such a striking resemblance in the versions of the
respective complainants in regard to the pattern followed
by the
accused, and his modus operandi taking into account that there was no
evidence indicating any collaboration or collusion
between the three
complainants, or a possible conspiracy, to falsely implicate the
accused, that coincidence can be ruled out.
The only material
difference between the three charges is that the accused did not have
intercourse with AW.”
The
court then proceeded to identify eight pieces of similar fact
evidence and continued at paras 42 and 43 to state:
“
42.
The probative value of the similar fact evidence is so high that it
clearly established a systematic course of conduct by the
accused.
For that reason the similar fact evidence is relevant and
admissible.”
43.
It follows that the similar facts are mutually corroborative of the
versions of all three complainants and that it consequently
serves as
further guarantee for the truth of their versions”
23.
I hasten to add that due to the urgency
counsel was not able to supply me with a transcript of the
proceedings, and even if they
had, it appears that the record would
have been too lengthy to have considered in the time available to
make a decision. I am therefore
reliant exclusively on the contents
of the judgment although Adv Coetzee indicated that the transcript of
the evidence would show
the context in which these passages of the
judgment are to be understood.
24.
I am limited to what is before me and, at
face value, the trial judge’s reasoning as to the acceptance of
similar fact evidence
as a material part of the evidence against the
accused, which was premised on an acceptance of the complainants’’
testimony
that they did not have contact and that they could not have
colluded to manufacture evidence.
25.
Prior to entering court I had an
opportunity of reading the application. Although not raised by Adv
Green a concern that arose when
looking at the emails were the
following exchanges on 7 June 2012:
At
10h22 from S to TT:
“
I
have the criminal case in hand. You guys can all act as witnesses.
Unfortunately for the South African’s if penetration
did not
occur there is no backlash”
At
12h34 from TT to S:
“
So
you saying if he did not have penetrative sex with his penis it does
not count? What about finger? What about oral? Just checking
so we
know who is on board and how far we can go”
At
12h45 from TT to S:
“
Hang
on I am getting confused. Do we have a case if there was no
penetrative with a penis?”
At
12h49 from S to TT:
“
The
Act doesn’t say what must penetrate so penetration is
penetration”
26.
I am not suggesting that there is no
rational explanation for raising these apparent concerns. They may
have been communications
regarding other possible victims who had
been sexually assaulted but not to the extent which would constitute
common law rape.
Again I do not have the context to work on; that can
only come from a consideration of the record, whether it was a
general discussion
and any other relevant emails that may have passed
during the period in question.
27.
However, it is evident that defence
counsel, if possessed of these documents at the time of the trial,
could have started immediately
by enquiring, for instance, why the
two complainants were querying about the acts which would suffice to
constitute rape under
our law and the actual discussions about the
extent to which they prepared discussed the actions of the accused.
28.
As I have indicated the context may provide
a perfectly rational explanation. But if the complainants are unable
to satisfy a court
as to why they engaged in this discussion and how
limited the discussions were then this may become directly relevant
and impact
on whether the state proved its case beyond a reasonable
doubt.
29.
Both sets of evidence which rely on the
actual correspondence between the complainants appear at face value,
and if regard is had
to the judgment, to be relevant and might
possibly have altered the effectiveness of cross examination, the
acceptance of similar
fact evidence and the outcome of the trial.
Once again I accept that this is without having the benefit of the
full transcript
or other emails at the time which may contextualise
these communications in a completely acceptable light. It is
axiomatic that
the trial judge would know whether the emails may have
affected the outcome of his decision and that I can only work from
the standpoint
that the State cannot say that it might not have done
say.
30.
Accordingly the emails appear relevant
because in the first instance they appear to contradict what appears
to have been the evidence
of the complainants in court that they had
no contact with each other; a factor relevant to the material finding
by the court of
the acceptance of similar fact evidence. The emails
are also relevant because they raise the question of why the two rape
complainants
would be discussing between them whether anything short
of penetration would still constitute rape.
31.
The question is whether seeking to
introduce this new evidence and re-open the case would constitute
either a constitutional issue
or one which raises an arguable point
of law of general public importance which ought to be considered by
that Court as required
by s.167 of the Constitution.
32.
Adv Green argues that it comes down to the
right of a fair trial which under section 35(3) (i) of the
Constitution includes the
right to adduce and challenge evidence. She
also relies on subsection (o) which is the right of appeal to a
higher court, although
I am not certain that in the present case that
is not putting the cart before the horse.
33.
Even if the accused is incorrect, it is
apparent that he is placed in an invidious position. The SCA has
refused his petition. This
occurred prior to the new evidence
becoming available. If the accused had known of the emails at the
time the petition was brought
he could have introduced it and
requested the court to exercise its powers under sections 19(b) and
(c) of the Superior Courts
Act to:
(b)
receive further evidence;
(c)
remit the case to the court of first instance, or to the court whose
decision is the subject of the appeal, for further hearing,
with such
instructions as regards the taking of further evidence or otherwise
as the Supreme Court of Appeal or the Division deems
necessary;
34.
If the accused attempted to do so now the
SCA may say that his remedy is to approach the Constitutional Court.
If he however approaches
the Constitutional Court and that court
considers that it cannot entertain the application for direct access
by reason of the provisions
of s.167 he can then attempt to approach
the SCA. If the Constitutional Court refuses the application on the
merits then
caedit questio.
35.
It seems to me that if an appeal court
comes to the conclusion that the new evidence ought to be received
then that would constitute
an exercisable right. If a right exists
then the law will provide a remedy. See
Minister of the
Interior and another v Harris
1952(4) SA 769 (AD) at p781A-B.
I should not non-suit where I am unable to say,
and may not be competent, having regard to the issue, to pronounce on
whether the
Constitutional Court will exercise jurisdiction
in a case where, if it does not have jurisdiction then the SCA will
by reason of its powers under section 19 of the Superior Courts Act.
Moreover there is no suggestion that the accused is deliberately
approaching the incorrect forum to seek a reopening to introduce new
evidence.
36.
Accordingly the question should rather be
framed as what is the threshold level for the merits of the appeal,
and in this case it
ought not to matter whether that appeal is
properly directed to the Constitutional Court or the SCA once I have
found that a right
exists since, under section 167(3) (c) of the
Constitution only the Constitutional Court can finally determine
whether a matter
is within its jurisdiction. A further question is
how does the issue of prospects of success fit into the bail regime
determined
by section 60 of the CPA.
37.
Adv Coetzee referred to
S
v de Villiers 1999(1) SACR 297 (O)
at
310C-E which according to her requires a separate enquiry into the
prospects of success. I would however refer to
S
v Hudson
1996 (1) SACR 431
(W)
at
433I-434D which dealt extensively with how the test of “reasonable
prospects of success was to be applied. The court said:
“
I
will place no reliance on (but am aware of) the dictum in S v
Williams (supra at 1172H) which reads: 'It is putting it too high
to
say that before bail can be granted . . . there must always be a
reasonable prospect of success on appeal.' In S v Richardson
1992
(2) SACR 169
(E) Erasmus J explained why the desirability that
sentence be served as soon as possible if there is no reasonable
prospect of
success on appeal, 'should be applied with circumspection
and care, and only in clear-cut cases'. (My emphasis.) In S v
Anderson
1991 (1) SACR 525
(C) Marais J, with reference to a
case where there is no reason to be concerned about whether or not
the applicant will abscond,
did not support an enquiry whether there
'is' a reasonable prospect of success. He said that if the appeal is
'reasonably arguable
and not manifestly doomed to failure', the lack
of merit in the appeal should not be the cause of a refusal of bail.
I agree. I
add that if the conclusion that the appeal is manifestly
doomed to failure can be reached only after what is tantamount to or
approximates a full rehearing, the appeal should ordinarily for
purposes of considering bail be treated as an appeal which is
arguable. The question is not whether the appeal 'will succeed' but,
on a lesser standard, whether the appeal is free from predictable
failure to avoid imprisonment. Cf S v Moeti
1991 (1) SACR 462
(B) wherein it was said that the applicant for bail must convince
that there is 'a reasonable possibility’ that the appeal
will
avert imprisonment.”
38.
In
S v
Scott-Crossley
2007(2) SACR470 (SCA) at
paras 5 and 7 the court referred to the relevance of prospects of
success in cases not covered by section
60(11) of the CPA, but that
in a section 60(11) situation where there has been a conviction for a
serious offence the consideration
of prospects of success does not of
itself constitute an exceptional circumstance but is one of the
considerations to be weighed
in determining whether exceptional
circumstances exist. In para 7 the court also dealt with the level of
examination of prospects
of success required of the court hearing the
bail application. The court said:
‘
The
prospects of success do not in itself amount to exceptional
circumstances as envisaged by the Act - the Court must consider
all
relevant factors and determine whether individually or cumulatively
they constitute exceptional circumstances which would justify
his
release (S v Bruintjies (supra)). In evaluating the prospects of
success it is not the function of this Court to analyse the
evidence
in the Court a quo in great detail. If the evidence is extensively
analysed it would become a dress rehearsal for the
appeal to follow:
cf S v Viljoen
2002 (2) SACR 550
(SCA) ([2002]
4 All SA 10)
at
561g - i. Findings made at this stage might also create an untenable
situation for the court hearing the appeal on the merits.’
In
my respectful
Hudson
continues to set out how a court goes
about determining the prospects of success and remains to compliment
Scott-Crossley.
I
should add that want of jurisdiction would
per se
have made
any appeal futile, but as I have mentioned the issue before me is
whether an arguable right exists to introduce new evidence
and its
possible effect on the outcome. Since I am not the trial judge, if I
am to err in making assumptions, then it must be on
the side of the
constitutional right to liberty.
39.
I therefore believe that the minimum
threshold has been met for the State not to be able to contend at
this stage that the case
is unarguable whether for want of
jurisdiction to a higher court or otherwise.
40.
Adv Coetzee argued that to allow the emails
in and reopen the case will reopen the wounds suffered by the
complainants and force
them again to revisit the degradation and
humiliation inflicted on them by the accused. I accept how painful it
must be, particularly
when they have a right to finality. That is a
factor to be considered when weighing whether exceptional
circumstances exist. However
that would already have been considered
by Bam J when he granted bail pending the petition to the SCA.
41.
I am not called on to decide whether to
re-open the case. That will be the decision of another court. At this
stage I must weigh
the right to bail and whether the Constitutional
Court can be seized of the matter, not what the outcome might be. It
also appears
in this context that I can take into account the
respective prejudice and balance of convenience that may be suffered
by reference
to the right to liberty under section 12 of the
Constitution and the right of appeal under section 35(3)(o).
If
I were to refuse bail and the accused is successful with his right of
access then he will be deprived of his freedom unnecessarily,
bearing
in mind that he is an elderly person, and the interests of justice
will not be served. If however bail is granted and the
right of
access is denied then he will proceed to serve his sentence and there
can be no adverse consequence to the interests of
justice.
ORDER
42.
It is for these reasons that I granted
bail in the following terms on 20 June:
1.
That the Applicant is granted bail of R 10 000.00 pending the
decision of his application for direct access to the Constitutional
Court. Such bail being on the same conditions as previously.
2.
If the application to the Constitutional Court is refused the
Applicant will hand himself over to the relevant authorities within
7
(seven) days of the refusal, such authority being the Registrar of
the Gauteng Local Division.
3.
If the petition to the Constitutional Court is not filed by 1 July
2016 the Applicant undertakes to hand himself over to the
Registrar
of the Gauteng Local Division by no later than Monday 4 July 2016.
4.
The bail paid on 23 March 2015 shall be deemed to have been paid in
respect of paragraph 1 of this order it being recorded that
the bail
receipt of that date has not been refunded.
SPILG
J
DATE
OF HEARING: 20 June 2016
DATE OF ORDER: 20 June 2016
DATE OF
JUDGMENT: 22 June 2016
LEGAL REPRESENTAIVES:
FOR
THE ACCUSED: Adv S Green
A.W.
Jaffer Attorneys Associated
FOR
THE STATE: Adv C Coetzee
[1]
See
the Schedule to the Sexual Offences Act as read with section 68(2)
[2]
s
60
Bail application of accused in court
(1)
(a) An accused who is in custody in respect of an offence shall,
subject to the provisions of section 50 (6), be entitled
to be
released on bail at any stage preceding his or her conviction
in respect of such offence, if the court is
satisfied that the interests of justice so permit.
[3]
S60
(4) The interests of justice do not permit the release from
detention of an accused 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 jeopardise the objectives
or the
proper functioning of the criminal justice system, including the
bail system;
(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;
[4]
S60
(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;