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[2017] ZAGPJHC 296
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Nel and Others v S (A508/2017) [2017] ZAGPJHC 296; 2018 (1) SACR 576 (GJ) (17 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A508/2017
DATE:
17/10/2017
Reportable
Not
of interest to other Judges/Revised
In
the matter between:
JACOBUS
STEPHANUS JOBS NEL
APPELLANT
1
DICKY
JUNIOR VAN ROOYEN
APPELLANT
2
JOSHUA
LIAM
SCHULTZ APPELLANT
3
and
THE
STATE
RESPONDENT
JUDGMENT
PETERSEN
AJ:
[1]
This is an appeal by the appellants’ against the refusal of
bail by the magistrate Tshwane North. The appellants' who
appear in
the district court as accused 1, 2 and 5 with two co-accused (accused
3 and 4) are charged with, attempted murder (count
1); pointing of a
firearm (count 2) and assault with intent to do grievous bodily harm
(count 3). Accused 3 abandoned his application
for bail in the
district court and accused 4 was released on bail in an earlier
separate bail application.
[2]
An appeal against the refusal of bail is governed by
section 65(4)
of
the
Criminal Procedure Act 51 of 1977
("the
Criminal Procedure
Act"
;) which provides that:
"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 shall have given".
[3]
The approach of a court hearing a bail appeal is trite. In
S v
Barber
1979 (4) SA 218 (D) at 220 E-H it was said:
"It
is well-known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a
substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly, although this Court may have a different view, it should
not substitute its own view for that of the magistrate because
it
would be an unfair interference with the magistrate's exercise of his
discretion. I think it should be stressed that, no matter
what this
Court's own views are, the real question is whether it can be said
that the magistrate who had the discretion to grant
bail exercised
that discretion wrongly ... "
The
appellants' assail the decision of the district magistrate both in
law and fact.
[4]
At the commencement of the bail application on 10 August 2017, the
State contended that the application resorted within the
ambit of
Schedule 5 of the
Criminal Procedure Act and
by implication that the
provisions of
section 60(11)(b)
of the
Criminal Procedure Act were
applicable. The appellants' legal representatives raised an objection
to this contention and addressed the court at length with
reference
to authorities. The magistrate called on the State, in response, to
reply to the objection. When an offence referred
to in Schedule 5 is
placed in issue, a prosecutor, is required either to produce written
confirmation in terms of
section 60(11A)
of the
Criminal Procedure
Act, or
prove to the court in some other way, ordinarily by way of an
affidavit by the investigating officer, that it is such an offence.
The State failed to produce either a certificate or evidence proving
the schedule. Instead the State submitted from the Bar that
the
injuries sustained by the complainant, which resulted in bleeding
from his ear and mouth, constituted a dangerous wound
within
the ambit of attempted murder involving the infliction of grievous
bodily harm in Schedule 5.
[5]
The dispute on the bail schedule required of the magistrate to give a
ruling, a duty she was acutely aware of, when she noted
that she was
not in a position to do so before applying her mind to the matter.
The focus briefly turned to the provisions of
section 60(11B)
of the
Criminal Procedure Act which
itself could have had an impact on the
schedule of the bail application. The appellants' disclosed no
previous convictions or pending
cases on which they were released on
bail. The State when asked to indicate if the application for bail
was opposed or not confirmed
that bail was opposed.
[6]
A sequence of unfortunate events followed. The magistrate perturbed
by the absence of authorities being made available to her
in print,
declined an offer by one of the legal representatives to have same
printed at his office which was in close proximity
to the courthouse.
At this stage the magistrate mooted the postponement of the
application to secure the authorities herself so
as to apply her mind
to the issue of the applicable schedule. The legal representatives
were engaged at length on this aspect.
A counter proposal was raised
that the application proceeds, with the court ruling on the schedule
and the bail proceedings as
a whole, at the end of the matter. The
magistrate raised concerns about the proposal, correctly so, in my
view, for reasons which
I deal later in this judgment. With the focus
squarely on the postponement of the matter submissions turned to the
accused right
to liberty and constitutional imperatives related
thereto at great length. In giving reasons why
the
matter should be postponed, the
magistrate raised the possibility of the opposition to the schedule
being withdrawn,
as an alternative to a postponement. She qualified
this proposal by stating that the appellants’ were not
forced
to do so. After a lunch
adjournment and obtaining instructions from
the appellants', the legal representatives still held their view that
the offence of attempted murder was not a schedule 5 offence,
but
"abandoned" the point on instruction of the appellants’
The magistrate accordingly ruled that the
application
proceed on the basis of schedule 5.
[7]
Counsel submits that this approach by the magistrate, which is
described as having forced the legal representatives into a corner,
constitutes a material irregularity. In the ordinary course of an
application for bail, a timeous ruling should be made on the
applicable schedule or section, whether placed in dispute or not.
This determines how the bail application will be conducted and
more
importantly determines the issue of onus. The magistrate, who
described herself as the driver of the vehicle had been heading
in
the right direction by indicating that she had to apply her mind to
the issue of the schedule. However, the magistrate took
a sudden
detour by raising the possibility of a withdrawal of the opposition
as an alternative to a postponement of the matter
which the legal
representatives of the appellants', albeit reluctantly, acquiesced
in.
[8]
The right of an applicant to apply for bail and the urgency thereof
is important but equally important are the rights of the
public and
the complainant. The sentiments in the decision of
S v
Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) at para 29 are apposite:
"The
right of an accused to a fair trial requires fairness to the accused,
as well as fairness to the public as represented
by the State. It has
to instil confidence in the criminal justice system with the public,
including those close to the accused,
as well as those distressed by
the audacity and horror of crime." A court should never allow
the interests of justice which
has fairness at its core
to be trumped by issues of convenience or expediency.
[9]
The decision by the appellants' legal representatives to withdraw
their opposition to the schedule as an alternative to a postponement
of the application was not in the interest of the administration of
justice or the appellants'. Similarly, the magistrate's proposal
of a
withdrawal of the objection, despite the protestations in her
judgment that the appellants' had not been forced to do so was
not in
the interests of justice.
[10]
It remains a salutary practice to give a timeous ruling on the
applicable schedule, particularly in the case of schedule 5
and 6
offences. The procedure at a bail application should be carefully
adhered to in a step by step process dictated by the bail
chapter
and
related
schedules in the
Criminal Procedure Act. In
Nwabunwanne v S
2017
(2) SACR 124
(NCK), Erasmus AJ agreed with a suggestion by Binns-Ward
AJ in
S v Josephs
2001 (1) SACR 659
(C) at
661f-h
"that,
given the drastic consequences for an accused if
section 60(11)
of
the CPA applies, it is desirable that the procedural provisions of
s
60(11A)
of the CPA should be closely adhered to and that proof of the
nature of the charges should occur with some formality, either at
the
commencement of proceedings or as soon thereafter as possible".
I agree.
[11]
I am accordingly satisfied that the proposal by the magistrate
leading to the acquiescence therein by the legal representatives
of
the appellants constitutes a material misdirection. This does not
imply, however, that the appellants’ are summarily entitled
to
be released on bail. In
R
v
Hepworth
1928 AD 265
on 277, it was said that:
"A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other
side, and a
judge's position in a criminal trial is not merely that of an umpire
to see that the rules of the game are observed
by both sides. A judge
is an administrator of justice, he is not merely a figure-head, he
has not only to direct and control the
proceedings according to
recognised rules of procedure but to see that justice is done."
[12]
In
Nwabunwanne
,
Erasmus AJ having found that the
magistrate had materially misdirected herself held at paragraph 19:
"This
matter before me is not one where I, on the facts before me, should
order whether or not the appellant should
be
released. It cannot merely be accepted that
the appellant or the
respondent would have
approached the bail application on the same basis, had there been
clarity whether
section 60(11)(b)
of the CPA applied or not. On this
basis alone the appeal should succeed and the matter remitted to the
Court a
quo."
[13]
The circumstances of the present appeal are distinguishable from
those in
Nwabunwanne.
This court has the benefit of the
evidence and submissions relevant to the attempted murder charge,
both prior to the issue of the
ruling and at the conclusion of the
evidence. This cou·rt is therefore in a position to determine
the issues in this appeal
and to give the decision which the lower
court should have given. There is further no indication that the bail
application would
have been conducted otherwise when one considers
the misplaced ruling of the magistrate that the charge of attempted
murder constituted
a schedule 5 offence, when opposition to the
schedule was withdrawn.
[14]
This matter demonstrates that the disputed facts of the State's case
provide no clear or easy answers on whether the charge
should be
attempted murder or assault with intent to grievous bodily harm. I do
not have the benefit of how the magistrate
would have
approached this question and that is a question now best left for the
trial court. At the very least the evidence is
that the complainant
on the attempted murder charge was viciously attacked to a point
where he bled from his mouth and ear causing
a burst eardrum
following a blow to the head with a firearm, being hit with fists and
kicked repeatedly. The intention of the accused
on the State's
version in inflicting grievous bodily harm is irrelevant. In
R v
Jacob
1961 (1) SA 475
(A) at 478A the following was said
pertaining to the infliction of grievous bodily harm, in the context
of the offence of robbery
with aggravating circumstances:
'The
question whether grievous bodily harm has been inflicted
depends entirely upon the nature, position
and
extent of the actual wounds or injuries, and the intention of the
accused is irrelevant in answering that question.'
[15]
This view has been confirmed in the context of a charge of Rape
involving the infliction of grievous bodily harm contemplated
in
Part
1(c)
of Schedule 2 read with
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
in
The Director of Public Prosecutions:
Gauteng Division, Pretoria v Moabi
(959/15)
[2017] ZASCA 85
(2
June 2017), where Molemela AJA said at para 15:
"In
my view, the high court's reliance on cases where the accused was
charged with the offence of assault with intent to do
grievous bodily
harm was clearly wrong. By importing the intention of the respondent
into the enquiry, the high court disregarded
the principles laid down
in
Jacobs.
It committed an error of law as 'intent' is
irrelevant in the determination of whether grievous bodily harm was
inflicted on a complainant
in the rape envisaged in Part
l(c)
of
the CLAA. Rather, the question to be answered is whether, as a matter
of fact, the victim of such a rape sustained grievous bodily
harm...".
[16]
For purposes of this appeal the remainder of the grounds of appeal
and heads of argument clearly move from the premise that
the
appellants' had adduced evidence on a balance of probabilities in
satisfying the onus brought about by
section 60(11)(b)
of the
Criminal Procedure Act which
provides:
"Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to -
(a)
….
(b)
in Schedule 5, but not 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 the interests of justice permit his or her release".
[17]
I propose to approach the appeal on the basis of these grounds of
appeal. The magistrate in effect refused bail by finding
a likelihood
of the grounds set out in
section 60(4)(a)
, (b), (c) and (e) read
with the factors in
sections 60(5)
,
6
,
7
and
8A
of the
Criminal
Procedure Act.
>
[18]
Before proceeding to deal with the grounds of appeal, it is clear
that the personal circumstances of the appellants’
were not
placed seriously in issue at the bail application and not disputed by
the investigating officer. I therefore do not propose
to repeat the
personal circumstances in this judgment.
[19]
Section 60(4)(a)
provides that:
"The
interests of justice do not permit the release from detention of an
accused...
(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;
The
magistrate in summarising the evidence of the investigating Officer,
Constable Tladi and his commanding officer, Warrant Officer
Naidoo,
noted that the complainants as well as witnesses at the KFC at the
Collanade Mall did not feel safe. This was based on
video footage
which had been taken of the complainant's motor vehicle indicating
the registration number. This led
to a fear that they might be
intimated by the appellants who lived in the same vicinity as they
did. The magistrate based on this
evidence found that the respondent
had successfully rebutted the evidence of the appellants' by showing
that there was a reasonable
likelihood that the appellants would
intimidate witnesses if released on bail. The finding lost sight of
the evidence of Constable
Tladi and Warrant Officer Naidoo under
cross examination that the fear expressed by the complainants and
witnesses was premised
on what
might
happen if the appellants'
were released on bail. The appellants' in their affidavits indicated
that they would not interfere with
or intimidate state witnesses.
What is required is a likelihood of the offending behavior
manifesting itself and not a mere possibility.
The gravity and
seriousness of the offences cannot be overlooked, which was at face
value was brutal, but that in itself cannot
lead to a conclusion that
witnesses would be intimidated. The imposition of suitable bail
conditions was overlooked
by the magistrate as a
way of mitigating such a likelihood.
[20]
Section 60(4)(b)
provides that:
"The
interests of justice do not permit the release from detention of an
accused...
(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".
The
magistrate found that the first appellant had surrendered himself
merely on the basis that accused 4 had been released on bail
anticipating that he too would be released on bail. This led to a
finding that the first appellant was a flight risk. There were
no
objective facts before the magistrate to draw this inference. The
third appellant the magistrate found posed a flight risk based
on the
strength of the State's case and the likely sentence which would be
imposed in the event of a conviction. The finding lost
sight of
Constable Tladi's evidence during cross examination that the third
appellant would not flee. In
S v Acheson
1991 (2) SA 805
(N),
Mohamed J said:
"An
accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption
of the law is that he is
innocent until his guilt has
been
established in court. The court will therefore ordinarily grant bail
to an accused unless this is likely to prejudice
the ends of
justice."
[21]
Section 60(4)(c)
provides that:
"The
interests of justice do not permit the release from detention of an
accused...
"(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;
..."
It
is not in dispute that counsel (or the legal representative) for the
first appellant had visited the Montana Hospital where the
complainants received medical attention and was privy to information
regarding their treatment. The magistrate premised on this
found that
counsel had contravened the provisions of
section 60(4)(d)
of the
Criminal Procedure Act and
made a blanket finding that all three
appellants’ would accordingly interfere in the State's case if
released on bail. Whilst
the behavior of counsel (or the legal
representative) should be deprecated in the strongest terms, it could
not be attributed to
any of the appellants'. The submission that
section 60(14)
of the Criminal Procedure Act alludes to information
which is contained in or forms part of the docket which an accused
may not
have access to for purposes of bail, does not avail counsel
(or the legal representative) in what simply should not have
happened. Save for the behavior of counsel (or the legal
representative) there were no other objective facts showing that the
appellants'
would interfere in the investigation of the State's
case.
[22]
Section 60(8)(e) provides that:
"The
interests of justice do not permit the release from detention of an
accused...
(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;"
and
(8A)
In considering whether the ground in subsection (4) (e) has been
established, the court may, where applicable, take into account
the
following factors, namely-
(a)
whether the nature of the offence or the circumstances under which
the offence was committed is likely
to induce a sense of shock or
outrage in the community where the offence was committed;
(b)
whether the shock or outrage of the
community might lead to public
disorder
if the accused is released;
(c)
whether the safety of the accused might be jeopardized by his or her
release;
(d)
whether the sense of peace and security among members of the public
will be undermined or jeopardized by the release
of the accused.
(e)
whether the release of the accused will undermine or jeopardize the
public confidence in the criminal justice system.
The
approach to this ground has been settled in
S v Dlamini
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) where Kriegler J held as follows at paragraph [57]:
"It
is important to note that sub-section 4(e) expressly postulates that
it is to come into play only "in exceptional
circumstances".
This is a clear pointer that this unusual category of factors is to
be taken into account only in those rare
cases where it is really
justified. What is more, sub-section 4(e) also expressly stipulates
that a finding of such circumstances
has to be established on a
preponderance of probabilities ("likelihood"). Lastly, once
the existence of such circumstances
has been established, paragraph
(e) must still be weighed against the considerations enumerated in
sub-section (9) before a decision
to refuse bail can be taken. Having
regard to these jurisdictional prerequisites, the field of
application for subsections 4(e)
and (8A) will be extremely limited.
Judicial officers will therefore rely on this ground with great
circumspection in the knowledge
that the Constitution protects the
liberty interest of all."
[23]
The incident, notwithstanding submissions to the contrary, manifested
racial connotations or undertones during the course of
the incident,
often described as so called "white on black" violence. The
understandable public outcry in incidents of
this nature is
understandable. The call for bail to be refused is likewise
understandable. However, the magistrate should not have
lost sight of
the very high watermark of section 60(4)(e) read with section 60(8A)
and the salutary warning expressed in S
v
Schietekat
1999 (1) SACR 100
(CC) at paragraph 104 where the court said:
"...
no more than expression, in statutory form, of what amounts to lynch
law. It is true to say that it is the duty of courts
of law to ensure
the maintenance of law, order and justice and so prevent that
greatest of all evils, a criminal justice system
so weak and
vacillating that people feel the need to avoid the courts and take
the law into their own hands. Despite this courts
have a greater
obligation to society at large. They must jealously guard the rule of
law. That is the lesson of this century..."
[24]
No objective facts of the likelihood and not possibility of the
eventualities envisaged section 60(8A) were presented to the
court
from which the magistrate drew her inferences. The magistrate appears
clearly to have been influenced by the events which
manifested itself
in the social media, comments emanating from the Minister of Police
on Twitter and protesters who had gathered
opposing the release of
the accused on bail. On what public outcry constitutes the magistrate
indicated that she did not need a
dictionary to tell her what public
outcry was but had merely to have regard to section 60(8A). It is
apparent that the magistrate
paid lip service to the statutory
provision.
[25]
A submission was made that the court considers the fact that accused
4 had been released on bail and that there had been no
public outcry.
However, the court must be alive to the fact that even upon a reading
of the record there is no indication as to
what happened on the 04
August 2017 in the magistrate's court leading to the release of
accused 4 on bail. Therefore it would be
mere speculation on the part
of the court to surmise that there would not have been a similar
stance taken by the protesters who
were at court on 10 August 2017.
Notwithstanding this, the question still remains, whether or not on
the high watermark, the State
had shown or rebutted the evidence that
there would be no public outcry.
[26]
Upon a consideration of the totality of the factors set out in
section 60(8A) it is clear that they are not to be read individually
but jointly, the one following upon the other. Whilst the court notes
that there were protests for bail to be refused, that there
has been
an outcry on social media, the question remains, even though the
magistrate had found the likelihood that the release
of the
appellants would disturb the public order or undermine public peace
and security, whether a consideration of section 60(9)
could have
mitigated this aspect. The magistrate failed to consider the
provisions of section 60(9), which on its own is a material
misdirection when regard is had to the decision of
Dlamini.
[27]
On the factors the magistrate had considered, I am of the view that
she had misdirected herself in respect of each of these
grounds and
that this court is at liberty to give the decision which the
magistrate should have given in the first instance.
[28]
In the result the following order is made:
1.
The appeal against the refusal of bail is upheld;
2.
The decision of the learned magistrate Rapulana in the court a
quo
is set aside.
3.
The order is replaced with an order as set out at Annexure
"X".
_____________________
AH
PETERSEN
ACTING
JUDGE
OF
THE HIGH COURT OF
SOUTH
AFRICA
APPEARANCES:
For
the First and Second Appellants: Advocate Kriel
Instructed
by: Steenkamp Van Niekerk Attorneys (First Appellant)
Booysen
Dreyer and Nolte Incorporated (Second Appellant)
For
the Third Appellant: Advocate Erasmus
Instructed
by: Van Jaarsveldt Attorneys
For
the Respondent: Advocate Broughton
Instructed
by: The Director of Public Prosecutions, PRETORIA
DATE
HEARD: 16 October 2017
DATE
OF JUDGMENT: 17 October 2017
ANNEXURE
"X"
APPEAL
NUMBER: A508/2017
DATE:
17/10/2017
THE
STATE
versus 1. Joshua
Liam Schultz, Jacobus
2. Stephanus Jacobs
Nel
3. Dicky Junior Van
Rooyen
(Hereinafter referred to
as the accused)
In
terms of Section 60 of Act 51 of 1977 it is ordered:-
That
each of the accused be granted bail in the sum of R5000-00 cash;
AND
1.
That upon payment of the said sum of money, the accused shall be
released from custody on condition that:-
He
appears personally at the Tshwane North Magistrates Court at 08h30am
(time) on the 18
th
day of October 2017 and thereafter on
such dates and times and to such places to which these proceedings
are adjourned until a
verdict is given in respect of the charge to
which the offence in this case relates, or where sentence is not
imposed forthwith
after verdict and the court extends bail, until
sentence is imposed;
2.
That the accused does not communicate with witnesses for the
prosecution, either directly or indirectly.
3.
That the accused are prohibited from entering or going to the
Colonnade Shopping Complex for the duration of this matter.
The
accused is informed that, in terms of section 67(1) Act 51 of 1977,
if, after his release on bail, he fails to appear at the
place and on
the date and at the time appointed for his trial or to which the
proceedings are adjourned, or fails to remain in
attendance at such
trial or at such proceedings, or fails to comply with the above
conditions, the Court shall declare the bail
provisionally cancelled,
and the money provisionally forfeited to the State, and issue a
warrant for his arrest. The accused is
further informed that it is
also a punishable offence for failing to appear or for non-compliance
with a stipulated condition.
(A copy of this order is to be brought
to the attention of the accused by their legal representatives upon
their release from custody)
By
order of the Court
THE
REGISTRAR