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[2010] ZAGPJHC 186
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S v Agliotti (SS 154/09) [2010] ZAGPJHC 186; 2012 (1) SACR 559 (GSJ) (16 August 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: SS 154/09
In the matter between:
THE
STATE
and
NORBERT
GLENN AGLIOTTI
Accused
RULING ON THE STATE’S
APPLICATION TO HAVE THE ACCUSED’S
EVIDENCE LED AT BAIL PROCEEDINGS IN
THE MAGISTRATES’
COURT ADMITTED INTO THE RECORD
KGOMO,
J
:
[1] On 12 August 2010, when the State
was to call its 7
th
witness to the witness stand, they
encountered a clinch as the intended witness, from MTN Cellular
Company according to them, was
not available to testify, the reasons
advanced being that the witness had been testifying in another case
in the Western Cape and
could not arrive in time to take the witness
stand.
[2] The defence, through Adv Hodes SC,
registered its discontent about this state of affairs, mostly because
– according to
them – they were not furnished with the
requisite statement made by this witness that could make the
technical data it is
going to explain, intelligible to them.
[3] The State, through Adv D Dakana,
intimated that they too were not in possession of that statement but
would endeavour to obtain
it before the witness testified.
[4] I made it clear to the State
counsels that that state of affairs was highly undesirable as it may
likely be classified as something
akin to “
ambush
litigation
”. I reminded the State counsels that the
accused was to be given all those statements that he was by law
entitled to,
and that the State and the defence should come together
when the case was adjourned to agree about whatever witnesses were to
be
called and if need be, the sequence of their appearances at
court. I also called upon the State counsels to ensure that the
defence was provided with all the necessary statements and/or
intended exhibits to enable them to adequately prepare for the
accused’s
defence.
[5] The State then made an application
to this Court for the admission as evidence or into the record of
proceedings herein the
bail proceedings that were conducted before
the Regional Magistrate, Johannesburg, a Mr Eksteen on 13 December
2006. In those
proceedings this accused was the applicant and
he was represented by the self-same Adv Hodes SC who is representing
him at this
trial. The proceedings therein were in terms of section
60(11B)(c) of the Criminal Procedure Act 51 of 1977 (as amended).
I will henceforth refer to the
Criminal Procedure Act as
“
the
Act
” and unless an Act is referred to specifically by name,
any reference to the Act will be a reference to the
Criminal
Procedure Act.
[6
] For record purposes, it should be
mentioned herein at this stage that according to Adv Hodes SC, he was
not yet SC at the time.
The averment or submission that he was
Senior Counsel at the time was made by Adv Dakana during his
submissions and argument for
the application to be granted. As
Adv Dakana did not gainsay the above “
correction
”
in his reply, I record it as a fact that at the time the accused
applied for bail at the Regional Court on 13 December 2006
Adv Hodes
SC was not yet a Senior Counsel.
[7] Both the State and Defence
Counsels prepared and used Heads of Argument during their submissions
and arguments. They also
supplemented the Heads of Argument
with verbal ones.
[8] In their Heads of Argument, the
State per Adv Dakana submitted that –
8.1
The
accused was legally represented by Adv Hodes SC duly instructed by
Kanarek Attorneys at the bail hearing. I have already
recorded
the correction about Adv Hodes’ title as SC at the time.
The gist of his argument was that the accused was
there and then
represented by an able and experienced counsel.
8.2
The
accused did not lead
viva
voce
evidence
at the bail hearing but that an affidavit was used in lieu of
viva
voce
evidence.
8.3
As a
consequence, so read the Heads of Argument, the accused was at the
time aware of the import and consequences of the affidavit,
more so
that he was so adequately and effectively represented.
8.4
Adv
Dakana submitted that since the accused relied on an affidavit at his
bail hearing instead of leading
viva
voce
evidence,
it was unnecessary for the Magistrate to specifically warn him as
required in terms of section 60(11B)(c) of the Act.
He further
argued that the accused deposed to the affidavit out of his own free
will and could clearly not have been unduly influenced.
8.5
Adv
Dakana also relied on
section 235
of the
Criminal Procedure Act which
regulates the proof of a record of judicial proceedings at a
subsequent trial without the presiding Magistrate therein being
called
to the witness stand, to prove the facts of what the accused
said at that previous trial or proceedings.
8.6
In
substantiation of the State submissions Adv Dakana relied on the
following authorities:
8.6.1
S v
Adams
1993
(1) SACR 611
(C).
8.6.2
S v
Venter
1996 (1) SACR 664.
8.6.3
S v
Nomzaza
1996
(2) SACR 14
(A).
8.6.4
S v
Basson
2005
(2) BCLR 1192
(CC) at 107-123.
8.6.5
S v
Dlamini, Dladla, Joubert and Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) at paras [86] – [1000].
8.6.6
Davis
v Tip NO and Others
1996
(1) SA 1152.
[9] In his supplementary
viva voce
argument Adv Dakana reiterated that –
9.1
the
bail affidavit was drawn up by or on his behalf by a seasoned and
capable counsel who obviously should have explained his legal
rights
to him;
9.2
part of
the contents of that affidavit were referred to by state witness
Clinton Nassif when he was on the witness stand;
9.3
by law
this Court can only refuse to accept or admit bail proceedings if the
accused was represented by an inexperienced counsel,
which was not
the case here as Adv Hodes SC is a seasoned, experienced and capable
counsel. For this submission he relied
on
S
v Nyengani
1996
(2) SACR 520
(E).
[10] He argued further that it is only
where oral testimony was tendered at a bail hearing that the
presiding officer was obliged
to warn the applicant in terms of
section 60(11B)(c).
He relied on
S v Balkwell and Another
2006 (1) SACR 60
(N) for the above submission.
[11] In opposing the above application
Adv Hodes SC made use of Heads of Argument duly supplemented by
verbal arguments. He
argued that since the accused was charged
under Schedule 6 in the
Criminal Procedure Act, he
was by law obliged
to adduce evidence which would satisfy the court hearing his bail
application that exceptional circumstances
existed, which in the
interests of justice permitted his release. He had no choice in
the matter. He further submitted
and argued that evidence could
be either
viva voce
or by affidavit and that on his advice,
the accused deposed to and relied on an affidavit in support of his
application.
Such affidavit, he submitted, satisfied the
evidentiary requirement set in section 60(11B)(c) of the Act.
[12] The crux of the defence’s
opposition was that by not warning the accused as applicant in that
bail application the Magistrate
committed a fatal mistake that should
result in this application being refused. He argued that the
provisions of section
60 (11B) (c) were peremptory and were not
complied with. Further that despite the State in this
application arguing that
by making use of an affidavit the accused as
the applicant in the bail proceedings was not electing to testify,
and as such it
not being necessary that he be duly warned by that
court, if (State) is yet seeking to introduce as evidence in this
trial that
self-same affidavit, which it calls evidence, tendered at
the Bail Application.
[13] It was the accused’s
further submission that the fact that the applicant (i.e. accused and
respondent) in this application
was represented by counsel and an
attorney have no bearing on the fact that peremptory provisions of
the law were to be complied
with and that as such this application
should be refused since they were not complied with.
[14] The defence further argued that
since the accused have not admitted the bail proceedings in terms of
section 220
of the
Criminal Procedure Act and
have not utilised same
in any manner during this trial to date, these bail proceedings
should not be admitted.
[15] Both counsels relied on several
decided cases which I will deal with briefly later.
[16] What is paramount and important
for a ruling in this case is that both sides are agreed that the
accused was not warned by
the Regional Magistrate on 13 December 2006
before the bail hearing proceeded.
[17]
Furthermore, my understanding of arguments from both sides herein is
that it is common cause that whenever an applicant in
a bail hearing
renders
viva
voce
evidence,
then the Magistrate is obliged and by law bound to warn him in terms
of
section 60(11B)(c).
The defence’s further contention
is that even where an accused person or applicant makes use of an
affidavit, the presiding
officer is still obliged to warn him in
terms of the section. The State’s argument is that where
an affidavit is used,
the warning is not necessary, especially where
he is represented by a capable or competent or experienced legal
representative.
The State further contends that it
should
be
obvious in the above case that the applicant’s legal
representative
would have
warned
him (applicant) of the legal consequences. I wish to place it
on record that the timing of a hearing on the admissibility
of
evidence tendered at a bail hearing is inconsequential. It can
be made at any stage of a trial. It is an interlocutory
matter.
The State is thus within their rights to bring this application at
this stage.
See:
S
v Basson
2003 (2) SACR 373
(SCA) at
[105].
See also:
S
v Basson
2007 (1) SACR 566
(CC).
[18]
Section 60(11B)(c)
of the
Criminal Procedure Act 51 of 1977
provides as follows:-
“
The
record of bail proceedings, excluding the information in paragraph
(a) shall form part of the record of the trial of the accused
following upon such bail proceedings:
PROVIDED
THAT
if
the accused elects to testify during the course of the bail
proceedings the court must inform him or her of the fact that
anything
he or she says, may be used against him or her at his or her
trial and that such evidence becomes admissible in any such
subsequent
proceedings.
”
[19] Allied to this section is
section
235
of the same Act relied upon by the State. Section 235
regulates the procedures followed in proving records of previous
judicial
proceedings.
[20] In our application at hand, the
admissibility of bail proceedings in this subsequent trial is the
issue. Section 235,
in my view may be of relevance as it also
deals with previous judicial proceedings, however, it does not relate
to the admissibility
of the contents of such proceedings at an
accused’s subsequent trial. I find the section consequently not
directly relevant
to the enquiry we are dealing with presently. The
case quoted by the state, viz. S v Nomzama, 1996(2) SACR 14 ruled
that the evidence
given by an accused at a bail application can be
allowed in the latter trial “if such evidence is otherwise
admissible.”
[21] The rider used in the case “
if
such evidence is otherwise admissible
” in my view
illustrates the point I made above that the admissibility of the bail
evidence is the paramount consideration,
not just the admission or
proof of the previous record through
section 235
of the
Criminal
Procedure Act. Some
authorities contend that such evidence (of
affidavit) may only be admitted if the trial court is satisfied that
when the accused
at the time made and handed in his affidavit he did
so voluntarily, knowingly and intelligibly waived his applicable
constitutional
rights. In this instance the accused is adamant that
he never waived any of his rights.
[22] It is not in dispute that the
constitutionality of admitting bail proceedings is not put into
question by any of the parties
herein. As a result, reliance by
the State on
S v Dlamini, Dladla, Joubert and Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) is
ex abundandi cautela
or surplus to
requirements. However, the principles and the law discussed in
that case also go a long way in helping decide
issues in our present
case.
[23] Trial courts are called upon and
are expected to remain alert to their duty to exclude evidence that
would impair the fairness
of the proceedings before them.
[24] It was held among others in the
S
v Dlamini et al
above that:-
“
But it is
not only trial courts that are under a statutory and constitutional
duty to ensure that fairness prevails in judicial
proceedings.
… The command that the presiding judicial officer ensure that
justice is done applies with equal force
to a bail hearing.
There the presiding officer is duty bound to ensure that an accused
who elects to testify, does so knowing
and understanding that any
evidence he or she gives may be admissible at trial.
”
[25] It is the State’s
contention that the presiding Magistrate was not obliged to warn the
accused before his affidavit was
read into the record because among
others his capable and experienced counsel should have explained his
rights and the implications
of
section 60(11B)(c)
to him earlier.
[26] In
S v Sejaphale
2000 (1)
SACR 603
(T) during a bail hearing the rights of the accused had been
explained to him by his legal representative, but not by the
Magistrate.
Jordaan J held among others that he (Jordaan J) as
the subsequent trial judge, did not have a discretion to admit the
record of
the bail proceedings as section 60(11B)(c) of the Act (51
of 1977) was peremptory. He further held that it required the
presiding
Magistrate at the bail hearing to warn the accused
accordingly and that failure by the Magistrate to do so, despite the
fact that
his legal representative have done so is tantamount to
non-compliance with the requirements of section 60(11B)(c). The
honourable
judge then ruled that the bail proceedings record is
inadmissible.
[27] Similarly, in
S v Nzima and
Another
2001 (2) SACR 354
(C) Jali J put it as follows at
356i-j:-
“
If one
reads s 60(11B)(c) it is clear that the Legislature placed the
obligation on the court to advise the accused of the fact
that the
evidence he gives during the bail proceedings may subsequently be
used against him in any proceedings. In my view, whether
the accused
is represented by an experienced legal representative or an
inexperienced legal representative, the court still has
a duty to
establish that the accused's rights have been properly explained to
him. It is not a duty which rests upon a legal representative
even
though the legal representative may assist or complement the court's
obligation in explaining the accused's rights.
”
The judge here did not differentiate
between oral evidence or evidence by affidavit.
[28] The question one is asking one
self is whether the honourable judge’s reference to even an
affidavit in bail proceedings
is a misnomer. It is common cause
that evidence in judicial proceedings may be tendered verbally or by
affidavit. They
are all, in my view, evidential material that
is placed before the presiding officer for the latter to take a
decision. Even
State Counsel did not gainsay this when I asked
him specifically about it.
[29] Was the presiding officer in the
accused’s bail application on 13 December 2006 obliged to warn
him in terms of section
60(11B)(c) despite the fact that he did not
testify
viva voce
but used an affidavit?
[30] Section 60(11B)(c) refers in its
contents to subsection or proviso (a) to section 60(11B) that obliges
the bail applicant to
inform the court whether, firstly, he has any
previous convictions, and secondly, whether there are pending charges
or cases against
him and whether he had been released on bail in
respect of such charges. Whether answers or information
obtained pursuant
to this proviso was given by the accused person or
his legal representative the Magistrate is obliged in peremptory
terms to enquire
from the accused whether he confirms such
information. It is a punishable criminal offence to give false
information. The
question is now why this cannot by rules of
interpretation of statute be construed as a requirement that the
presiding officer
should inform the applicant of what is required of
him in respect of the remaining proviso of section.
[31] In
S v Pienaar
1992 (1)
SACR 178
(W) the issue of evidence on affidavit was in issue.
The circumstances under review in that case preceded the coming into
operation of section 60(11) of the Act, which was only introduced
into the Act by section 4(g) of the Criminal Procedure Second
Amendment Act 85 of 1997, which amendment Act came into effect from 1
August 1998. The court held that an affidavit ranked as evidence
but
not as high as
viva voce
evidence. The court talked
therein of higher caste evidence and lower caste evidence. In
my view that is a recipe for
ambiguity and lack of legal certainty.
Evidence should be evidence finish and klaar.
[32] In
S v Snyman and Another
1992 (2) SACR 169
(C) the court held that though accepted that bail
proceedings may form part of subsequent trial proceedings the
applicant at bail
proceedings should be warned. If not warned,
the record is not admissible at subsequent trials. Importantly,
the court
further held that whether he was properly warned or not is
a factual situation that should be determined on a case by case
situation.
[33] In
S v Balkwell and
Another
2006 (1) SACR 60
(N) the record of bail proceedings was
admitted in the accused’s subsequent trial because his counsel
referred to or used
parts thereof during cross-examination of the
state witness(s). The court found that it was the defence that
introduced the
contents of the bail proceedings into the trial and
could therefore not object to their admission into the record of the
subsequent
trial itself.
[34] I have listened attentively to
all the proceedings in this Court this far: Defence counsel did
not once refer to the
bail proceedings. The State argues that
Clinton Nassif referred once to them in his testimony. That
could be so but
Clinton Nassif is a state witness not a defence
witness. As a consequence, I cannot find and rule that the
defence had lifted
its shield justifying the admission or use of the
bail proceedings in this trial.
[35] The warning in terms of section
60(11B)(c) is an important constitutional safeguard that impacts
directly on whether an accused
person received a fair trial.
The authors, Du Toit, De Jager, Paizes, Skeen & Van der Merwe in
their
Commentary on the
Criminal Procedure Act
at
9-52
suggests that their understanding of
section 60(11B)(c)
is that it
refers to and should be confined to oral testimony by the accused
where he exposes himself to cross-examination. They
qualify
their submission or opinion, very importantly in my view, when they
proceed to state that –
“…
Where
an accused who was properly warned elects to testify on the merits …,
he may be cross-examined on the merits …
”
[36] The above was the conclusion the
court arrived at in
S v Van Wyk
2005 (1) SACR 41
(SCA) at
paragraph [6].
[37] An accused person making an
application for bail in terms of
section 60(11B)(c)
is obliged to
discharge the
onus
of proving exceptional circumstances that
shows that it is in the interests of justice that he/she be released
on bail. There
is no choice if that accused person wants to be
admitted to bail but to disclose information to the satisfaction of
the court at
that stage. It may be that at that stage the
charge sheet has not yet been fully completed or drafted and as a
result, not
be fully aware of the precise nature of the allegations
of fact that he will or may ultimately have to face in the subsequent
or
eventual trial. It is also so that at this stage the accused
is no yet entitled to the contents of the police docket
per se
.
The interests of justice require that the accused’s
constitutional rights and guarantees be respected. Section
35(5) of the Constitution of the Republic of South Africa, 1996,
provides that –
“
Evidence
obtained in a manner that violates any rights in the Bill of Rights
must be excluded if the admission thereof would render
a trial unfair
or otherwise be detrimental to the administration of justice.
”
See:
S
v Aimes and Another
1998 (1) SACR 343
(C).
[38] The above situation or scenario
applied to the accused at the time he applied for bail. The
charges were not yet finalised.
In that fresh and additional
charges were only formulated and disclosed to him when this trial
started on 26 July 2010.
[39] It is my considered view that
even where an accused or applicant in bail hearing concerning
Schedule 6 offences, intends to
use an affidavit, it is a peremptory
duty of the court, right at the beginning of the proceedings, to warn
him fully and comprehensively
of the provisions of section
60(11B)(c). That would allow the applicant/accused to make an
informed choice before he decides
on testifying
viva voce
or
making use of an affidavit. It does not make sense to me to
want to utilise evidence obtained through both oral testimony
and
affidavit but only expect the owner of such evidence only to be
warned when he testifies orally. As I stated before,
both oral
evidence and affidavit are evidence that may be used in the
subsequent trial. As such, the requisite warning should
be
issued by the court to the accused before he elects to testify orally
or decide to use an affidavit. If he has been so
properly
warned, then those bail proceedings should be admissible in his
subsequent trial. That is why in the
Commentary
and
S
v Van Wyk (supra)
the words –
“
where the
accused was properly warned and he elects to testify …
”
in my view, lends to such an
interpretation.
[38] I reiterate: The warning
must be issued before the accused makes an election whether to
testify
viva voce
or through an affidavit. That would in
my view remove the possibility of any absurd interpretation of the
section and also
ensure a fair trial for an accused person.
[39] Whether he was represented by a
good or able or competent or experienced counsel is not a
consideration that would affect what
ought to be done. It should be
done by the court, not by counsel or attorney representing the
applicant in the bail proceedings.
[40] For the above reasons the
application by the State for the admission of this accused’s
record and contents of bail proceedings
conducted on 13 December 2006
is refused and thus dismissed.
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
APPLICATION MADE
12 AUGUST 2010
DELIVERED (IN COURT)
16 AUGUST 2010