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[2020] ZAGPJHC 319
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Khoza v S (A45/2020) [2020] ZAGPJHC 319 (1 June 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.: A45/2020
In the matter between:
DERRICK
KHOZA
Applicant
And
THE
STATE
Respondent
JUDGMENT
MOGALE,
AJ:
INTRODUCTION
[1] This is an appeal against the
refusal of bail by the Acting Regional Magistrate Mr Britts sitting
in Tembisa Magistrate Court
on the 17
th
of March 2020.
[2] The Appellant is facing one count
of Murder read with the Provisions of Section 51(2) of Act 105 of
1977.
[3] Both the Applicant and the
Respondent have mutual concession to have the Appeal decided on their
Heads of Arguments.
[4] The court has drafted a written
Judgment.
BACKGROUND
[5] It is common cause that the
Appellant and the deceased had a love relationship which started in
March 2019. The Appellant is
married and rented a place to stay in
house number […] Exubeni Section, Tembisa.
[6] The Appellant rented a room at No
[…] Mashemong Section, Tembisa where he was staying with his
girlfriend (hereinafter
“the deceased”).
[7] On the morning of the 13
th
January 2020, the decomposed body of the deceased was discovered by
the police on her bed and next to it was a broken bottle.
[8]
There is no direct evidence of how and when the deceased died but
according to the Doctor’s Post Mortem report, the cause
of
death was undetermined due to decomposition but had signs of blunt
trauma.
Factors
leading to the refusal of bail
:
[9] Bail application was opposed on
the basis that the Appellant faced a serious offence which carries a
maximum sentence of 15
- 20 years imprisonment.
[10] The Appellant was flight risk, he
lied about his address and further that he concealed evidence that
might assist the State
in their investigation.
[11] The offence outraged the
community as a result the safety of the Appellant is not guaranteed.
[12] The Appellant submission is that
the Appellant address was positively identified as a result, the
judgment is not clear as
to what basis the magistrate made a
conclusion that the Appellant is a flight risk. The Appellant also
gave his brother’s
address who is a Captain as an alternative
address where he will be staying until the matter is finalized and
the address was also
verified. The Appellant handed himself to the
investigating officer after receiving a report that the police were
looking for him.
There is no evidence that he tried to abscond. There
is no direct evidence linking the Appellant to the offence as a
result, the
case is all circumstantial, as a result, there is no
likelihood to interfere with witnesses. There is no DNA report
linking the
Appellant and the State is not in possession of cell
phone record to ascertain communication between the deceased and her
friends
proving that he is a violent person. The appellant has clean
record with no pending cases.
[13] The Respondent submission is that
the Applicant failed the test that the interest of Justice permits
for his released based
on the fact that, he took cellphone of the
deceased in order to temper or destroy the state evidence. That
Matron’s affidavit
is to the effect that he did not reside at
No 162 Exubeni between October and November as he moved out and that
shows that he is
a flight risk. The appellant is a violent person as
stated by the deceased friend by way of a WhatsApp message from the
decease
and further that he mislead the police with information about
his employment statues. The community is outraged at gender
based violence and has no hesitation to take the law into their hands
if the applicant is granted bail. Therefore the bail court
has a duty
to protect the applicant from such threat. The respondent submits
that the applicant’s application must be dismissed.
[14] An appeal against the refusal of
bail is governed by
section 65(4)
of the
Criminal Procedure Act 51 of
1977
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.”
[15] 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 held 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 of bail. This court has to be persuaded that the
magistrate exercised the discretion which is wrong. Accordingly,
although this court may have a different view, it should not be
substituting its own view for that of the magistrate because it
would
be 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.
[16] At the commencement of the bail
application, the state contended that the application resorted within
the ambit of Schedule
5 of the
Criminal Procedure Act and
by
implication, the provisions of
Section 60(11)(b)
of the
Criminal
Procedure Act which
applicable are as follows:
“
Notwithstanding
any provisions of this ACT, where an accused is charged with an
offence referred to in section 5 but not Schedule
6, the court shall
order that the accused be detained in custody until he or she 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 interest
of justice permits his or her
release.”
[17] The magistrate refused bail by
finding a likelihood of the ground set out in section 60 (4) (a) (b)
(c) (e) read with
section 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 appellant’s were
not an issue at the bail application and
not disputed by the investigating officer. Therefore, I am not going
to repeat the personal
circumstances in this judgment.
[19]
Section 60
(4) (a) provides that
the interest 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 public or any person
or will
commit a Schedule 1 offence. The magistrate in summarizing the
evidence of the Investigating officer, Sergeant Rapatswane
that based
on the WhatsApp massages taken from one of the deceased friends, the
appellant is a violent person. Based on the information
from one of
the deceased friends, the appellant once warned her to stay away from
the deceased, if the appellant is admitted to
bail, he will interfere
with these witnesses. During cross-examination the witness admitted
that the deceased never mentioned the
name of the appellant in her
message. The Investigating officer did not mention the names of
possible witnesses who might be intimidated.
The magistrate based on
this evidence found that the respondent successfully rebutted the
evidence of the appellants’ by
showing that there is a
reasonable likelihood that the appellant would intimidate witnesses
if released on bail. The appellant
in his affidavit indicated that he
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 the seriousness of the
offence cannot be
overlooked, which was at face value brutal, but
that itself, cannot lead to a conclusion that the witnesses would be
intimidated.
The imposition of suitable bail conditions were
overlooked by the magistrate as a way of mitigating such likelihood.
(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 appellant is a flight risk. The fact that his affidavit
indicated that he resided at […] Ekhubeni
Section was
contradicted by the Metron’s affidavit who stated that the
Appellant moved out of the residential place in October
2019 and in
November when the incident took place, he was no longer staying in
the abovementioned address. Under cross-examination,
the
investigating officer confirmed that the plaintiff address in
Mpumalanga, his brother who is a Police Captain address in Alberton
which was provided as an alternative address where the appellant will
be staying during the period of the trial and further confirmed
that
the Applicant and his wife rented a room at […] Ekhubeni
Section for the past 15 years. The appellant received information
that the police were looking for him and he handed himself to the
police with the assistance of his brother, Captain Goodwill Khoza.
There are no objective facts before the magistrate to draw the
inference that the appellant is a flight risk. The deceased was
last
seen on the 10 November 2019 and the applicant was only contacted
after the deceased body was discovered on the 13 November
2019, he
then handed himself. I believe that if the appellant wanted to evade
trial or skip the country he had ample opportunity
to do so.
(c)
Where
there is likelihood that the accused, if he or she were released on
bail, will attempt to influence or intimidate witnesses
or conceal or
destroy evidence. The magistrate submits that the appellant is either
in possession of the deceased phone or destroyed
it with the
intention to destroy the communication which might prove that he was
an abuser and a violent person. Under cross-examination
he agreed
that in the course of his investigations, he can apply to obtain cell
phone records of the deceased in terms of Section
205 of the Act. It
is also common cause that there are no witnesses to the murder
charge, only circumstantial facts are link the
appellant with the
commission of the offence.
(d)
where
in exceptional circumstances there is the likelihood that the release
of the accused will disturb the public peace and security
And
(8A) in considering whether the ground
is 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.
[20] 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.”
[21]
The incident, notwithstanding submissions to the contrary, manifested
violence against women and children. 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:
“
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 felt 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.”
[22] The magistrate appears clearly to
have been influenced by the number of people who signed petition, the
comments written therein
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 turned the blind eye to
the statutory provision.
[23] On the factors the magistrate had
considered, I am of the view that he had misdirected himself 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.
[24] In the result the following order
is made:
24.1.
The
appeal against the refusal of bail is upheld;
24.2.
The
decision of the learned magistrate Mr Britts in the court a quo is
set aside;
24.3.
The
order is replaced with an order as set out at Annexure "A".
_________________________
K
MOGALE (Ms)
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
D
ate
of hearing: 01 June 2020
Date
of judgment: 01 June 2020
APPEARANCES
Counsel for the Applicant: Adv G
Ngobeni
Instructed by: Gibson Ngobeni
Attorneys
Counsel for the Respondent: Adv M.
Papachristoforou
Instructed by: Director of Public
Prosecution, Johannesburg
Annexure
“A”
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case No. A45/2020
Before:
Judge Mogale AJ
On
01 June 2020
In
the matter between:
DERRICK
KHOZA
APPLICANT
And
THE
STATE
RESPONDENT
COURT ORDER
THE STATE versus Khoza Derrick
(Hereinafter referred to as the accused)
In
terms of Section 60 of Act 51 of 1977 it is ordered-
That the accused be granted bail in
the sum of R3 000-00 cash
AND
That upon payment of the said sum of
money, the accused shall be released immediately from custody on
condition that:-
1.
He
appears at the Tembisa Magistrates Court at 08h30am (time) on the
27th day of May 2020 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.
the
accused does not communicate with witnesses for the prosecution,
either directly or indirectly.
3.
the
accused should reside at house number [...] Leopard Rest, Alberton,
Gauteng until the case is finalized. The appellant must
report to the
Investigating officer when travelling to Mpumalanga to visit his
family.
4.
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
his release from custody).
BY ORDER OF COURT
_________________________
REGISTRAR
COUNSEL
O.B.O. APPLICANT: Adv. G Ngobeni 081 3333 050
COUNSEL O.B.O. RESPONDENT: Adv. M
Papachristoforou 079 194 9787