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[2021] ZAGPJHC 19
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Menyuka v S (SS216/2012) [2021] ZAGPJHC 19; 2021 (2) SACR 316 (GJ) (24 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER
JUDGES: YES
(3)
REVISED: YES
Date:
24 February 2021
CASE NO: SS216/2012
In the matter between:
GONGINKOSI
MENYUKA
Applicant
and
THE
STATE
Respondent
JUDGMENT
STRYDOM J
:
[1]
This is an application for bail pending the
hearing of an appeal against both conviction and sentence.
[2]
The applicant was convicted by the Late
Honourable Judge Maluleke sitting as a court of first instance.
As a result of the
death of the trial judge, this application was
heard by this court. Previously, the trial judge refused leave
to appeal against
conviction and sentence but leave to appeal was
granted on 25 August 2017 by the Supreme Court of Appeal, to the Full
Court of
the Gauteng Division of the High Court, Pretoria, against
conviction and sentence imposed by the trial judge.
[3]
During or about 2013, the applicant was
convicted on a count of murder and attempted murder and was sentenced
to an effective 27
years’ imprisonment. The applicant has
been serving his sentence since 22 August 2013.
[4]
This bail application is brought pursuant
to the terms of section 321 of the Criminal Procedure Act, 51 of 1977
(“the CPA”)
which reads as follows:
“
321
When
execution of sentence may be suspended
(1)
The
execution of the sentence of a superior court shall not be suspended
by reason of an appeal against a conviction or by reason
of any
question of law having been reserved for consideration by the court
of appeal, unless –
(a)
…
(b)
the
superior court from which the appeal is made or by which the question
is reserved thinks fit to order that the accused be released
on bail
or that he be treated as an unconvicted prisoner until the appeal or
the question reserved has been heard and decided:
Provided that when the
accused is ultimately sentenced to imprisonment the time during which
he was so released on bail shall be
excluded in computing the term
for which he is so sentenced:
Provided further that when
the accused has been detained as an unconvicted prisoner, the time
during which he has been so detained
shall be included or excluded in
computing the term for which he is ultimately sentenced, as the court
of appeal may determine.
(2)
If
the court orders that the accused be released on bail, the provisions
of sections 66, 67 and 68 and of subsections (2), (3),
(4) and (5) of
section 307 shall mutatis mutandis apply with reference to bail so
granted, and any reference in –
(a)
section
66 to the court which may act under that section, shall be deemed to
be a reference to the superior court by which the accused
was
released on bail
(b)
section
67 to the court which may act under that section, shall be deemed to
be a reference to the magistrate’s court within
whose area of
jurisdiction the accused is to surrender himself in order that effect
be given to any sentence in respect of the
proceedings in question;
and
(c)
section
68 to a magistrate to be deemed to be a reference to a judge of the
superior court in question.”
[5]
In terms of section 321(1)(b), the superior
court from which the appeal is made has a wide discretion to consider
whether bail should
be granted to a sentenced prisoner. This is
underpinned by the use of the words “
thinks
fit to order
” that the accused be
released on bail.
[6]
When this matter was heard by this court I
posed the question to counsel appearing for the applicant and the
State whether section
60 of the CPA, and more particularly section
60(11)(a), would determine the criteria and test to be applied in the
court’s
exercise of its discretion to either grant or refuse
bail as envisaged in section 321 of the CPA.
[7]
Section 60(11) determines as follows:
“
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;”
[8]
Upon consideration of the wording of
section 60, it becomes apparent that this section deals with accused
persons not yet convicted.
Section 60(11) deals with an accused
who has been charged with an offence and does not refer to a
convicted and/or sentenced person.
[9]
Turning to section 321, this section does
not render section 60 applicable whilst it does so in relation to
sections 66, 67 and
68 of Chapter 9 of the CPA dealing with bail.
In terms of section 321(2) subsections (2), (3), (4) and (5) of
section 307
apply
mutatis mutandis
with reference to bail so granted.
[10]
Section 307 deals with reviews and
subsection (2) cross-references to sections 59 and 60 of the same Act
in the following terms:
“
(2)
If the court releases such a person on bail, the court may –
(a)
if
the person concerned was released on bail under section 59 or 60,
extend the bail, either on the same amount or any other amount;”
[11]
This section does not render sections 59 or
60 applicable to a bail application in terms of section 321 as it
merely states that
if bail was previously granted under these
section, such bail may be extended.
[12]
Reference should also be made to section 58
of the CPA to consider the applicability of section 60(11)(a) or (b)
when bail is considered
by the trial judge pending appeal. This
section deals specifically with the effect of bail and makes it clear
that bail endures
until a verdict is given by a court in respect of
the charge to which the offence in question relates. Where
sentence is
not imposed forthwith after the verdict and the court
extends bail until sentence is imposed, it should only do so subject
to the
following
proviso
contained in section 58:
“
Provided
that where a court convicts an accused of an offence contemplated in
Schedule 5 or 6, the court shall, in considering the
question whether
the accused’s bail should be extended, apply the provisions of
section 60(11)(a) or (b), as the case may
be, and the court shall
take into account –
(a)
the fact that the accused has been convicted of that offence; and
(b)
the likely sentence which the court might impose.”
[13]
The relevance of this section is that the
legislator specifically dealt with the applicability of section
60(11)(a) and (b) when
bail is extended pending the imposition of
sentence. It does not deal with a further bail application after an
accused was sentences
and after he or she started to serve such
sentence. It is also to be noted that section 321 of the Act does not
have a similar
proviso as that contained in section 58.
[14]
The question that arises is whether a
superior court hearing a bail application pursuant to the terms of
section 321 is bound by
the terms of section 60(11)? More
particularly so as section 321 stipulates that the superior court
from which the appeal is made
can grant bail to a person serving a
sentence if the court thinks it fit to do so.
[15]
In
S v
Masoanganye
[1]
Harms JP found as follows:
“
[13]
I now revert to the appeal proper. An application for bail after
conviction is regulated by
s 321
of
the Act. It provides that the execution of the sentence of a superior
court ‘shall not be suspended’ by reason of
any appeal
against a conviction unless the trial court ‘thinks it fit to
order’ that the accused be released on bail.
This requires of a
sentenced accused to apply for bail to the trial court and to place
the necessary facts before the court that
would entitle an exercise
of a discretion in favour of the accused. Compare
S
v Bruintjies
2003
(2) SACR 575
(
SCA)
para 8.”
[16]
In
S v
Bruintjies
the Supreme Court of Appeal
also dealt with an appellant who was convicted on a count which fell
within the ambit of section 60(11)
of the CPA. After quoting
the section, the court found as follows:
“
[5]
The section deals, on the face of it, with unconvicted persons.
However, it must follow that a person who
has been found guilty of a
Schedule 6 offence cannot claim the benefit of a lighter test. It was
conceded that the mere fact that
a sentenced person has been granted
leave to appeal does not automatically suspend the operation of the
sentence, nor does it entitle
him to bail as of right. (See R v
Mthembu
1961 (3) SA 468
(D)).”
[17]
This
ratio
of
Bruintjies
was accepted by the Supreme Court of Appeal in
S
v Scott-Crossley.
[2]
The court in
Scott-Crossley
found as follows:
“
[4]
It is thus clear that the appellant bore the onus to persuade this
court that exceptional circumstances exist which
in the interests of
justice permit his release on bail.”
[18]
The Supreme Court of Appeal in matters
pertaining to bail applications pending appeal accepted that the
criteria set in section
60(11) remains applicable. See for instance
S
v
Rohde.
[3]
In this matter Van der Merwe JA, delivering the
majority judgment, made the following comment dealing with a bail
application after
conviction and sentence:
“
As
my Colleague points out, s 60(11)(b) of the Criminal Procedure
Act, 51 of 1977 (CPA) is applicable.”
[19]
Section 321 which provides the court with a
wide discretion through the use of the words “
thinks
fit to order that the accused be released on bail”
was
not referred to in the judgment in
Rohde.
[20]
As indicated hereinabove, the Supreme Court
of Appeal in
Rohde
specifically found that section 60(11)(b) remains
applicable in a bail application pending appeal after sentence was
imposed.
In
Bruintjies
,
it was held that an applicant under such circumstances cannot claim
the benefit of a lighter test than that imposed in the case
of
unconvicted persons by section 60(11). The court stated that
exceptional circumstances must be established without reference
being
made to the discretion provided for in section 321.
[21]
In both these cases the test applied to
consider the bail applications, after sentence pending appeal, was to
apply the criteria
of either section 60(11) (a) or (b). In The case
of
Bruintjies
the
court found that the appellants bore the onus to persuade the court
that exceptional circumstances exist, which in the interests
of
justice permit their release on bail. In
Rohde
it was specifically stated that section 60(11)(b)
remains applicable.
[22]
The fact that in
Bruintjies
,
the court acknowledged that on the face of it, section 60(11) is
applicable as far as unconvicted persons are concerned, serves
as an
indication that the court considered that it may not be applicable in
the case of convicted persons. The court nevertheless
concluded that
a convicted person convicted of a crime falling within the ambit of
section 60(11)(a) cannot claim a lighter
test to be applied
when bail pending appeal is concerned. This would mean that an
applicant will have to lead evidence, in a case
falling within the
ambit of this section, that exceptional circumstances exist which in
the interest of justice permit his release.
There is a difference in
the approach adopted in
Rohde
and
Bruintjies.
In
the case of
Rohde
the
court found that section 60(1)(b) was applicable whilst the court in
Bruintjies
applied
the criteria set in section 60(11)(a) as the appellant could not
claim the benefit of a lighter test after conviction.
I
am bound by these decision and in any event, am in agreement with the
finding in
Bruintjies
that exceptional circumstances will have to be shown before a person
convicted of schedule 6 offences and sentenced to long term
imprisonment is released on bail pending an appeal. Despite the wide
discretion provided for in section 321 a starting point should
be
that exceptional circumstances will have to be shown to be granted
bail which effectively suspends the sentence of the applicant
until
his appeal is dealt with.
[23]
Accordingly, I will approach this matter
and exercise my discretion on the basis that the applicant had to
adduce evidence to persuade
this court that exceptional circumstances
exist which in the interests of justice permit his release on bail.
[24]
The applicant made it clear in his notice
of bail that he applies for bail in terms of section 321(1)(b) of the
CPA. He filed
an affidavit in support of his bail application.
No affidavit was filed on behalf of the State. When the matter
was
heard, counsel for the applicant enquired from the court whether
oral evidence would be necessary and the court indicated to Mr
Nobangule, that it is the applicant’s choice to lead further
evidence or to stand by the filed affidavit.
[25]
The affidavit of the applicant on the face
of it was drafted without the assistance of a legal practitioner and
in prison whilst
serving his sentence. The affidavit contains factual
allegations and legal submissions in a somewhat disorganized fashion.
To some
extent the court will bear in mind that this is an affidavit
of a layman who attempted to place facts before court. From
this affidavit, the following facts can be discerned:
25.1
The applicant is a 49-year-old father of
four and a South African citizen.
25.2
He has been incarcerated since his
conviction on 22 August 2013.
25.3
The address where his children live and
where he would reside if released on bail is 480 Blue Gum Street,
Extension 10, Boksburg.
He also has a home in Jozini,
KwaZulu-Natal, where he was born.
25.4
He stated that he has a large amount of
assets in his possession as an incentive for him not to abscond.
25.5
He indicated that he was previously out on
bail in the amount of R3,000 and stood his bail and adhered to all
bail conditions throughout
the trial.
25.6
He stated that since August 2017, after he
obtained leave to appeal against his conviction and sentence, he
attempted to have his
appeal prosecuted in the High Court but was
informed that the judgment could not be found. He states that
one of the grounds
for his application for bail is on the basis that
the Director of Public Prosecutions has, on several occasions, failed
to place
the matter before an appeal court for hearing.
25.7
He pointed out that he has no previous
convictions or other pending cases against him.
25.8
He indicated that he has no travel
documents.
25.9
He has no links outside of this country
that would make it easy for him to abscond.
25.10
He indicated that he will not abscond
should his appeal not be successful. He submitted that he is
not a danger to the public
and that he would not place in jeopardy
the functioning of the criminal justice system.
25.11
He claims that he has reasonable prospects
of success that his appeal will be upheld.
25.12
Reference was also made to alleged
irregularities during the course of the trial particularly as far as
the trial judge’s
interference with the cross examination of
witnesses was concerned.
[26]
It was argued on his behalf that there is a
high likelihood that the conviction will be overturned. To come
to this conclusion,
reliance was not only placed on the fact that the
applicant obtained leave to appeal from the Supreme Court of Appeal
but reference
was made to the evidence pertaining to his
identification as one of the perpetrators.
[27]
It has been found many times by our
courts, including by the Supreme Court of Appeal, that the mere fact
that an accused obtained
leave to appeal, either from the trial court
or from the Supreme Court of Appeal upon petition, is not necessarily
on its own a
sufficient factor to entitle a convicted accused to be
released on bail. This fact does not establish exceptional
circumstances
in favour of the granting of bail.
[4]
[28]
In
Masoanganye
the Supreme Court of Appeal held that
what was of more importance than merely being granted leave to
appeal, was the seriousness
of the crime, the real prospects of
success on conviction and a real prospect that a non-custodial
sentence may be imposed.
The same sentiment was expressed in
Bruintjies
where
it was found that what was required was that a court examine all
relevant circumstances and determine whether these circumstances,
individually and cumulatively, amounted to exceptional circumstances
justifying the appellant’s release on bail. The
court in
Bruintjies
found
as follows:
“
[6]
…The prospects of success may be such a circumstance,
particularly if the conviction is demonstrably suspect. It may,
however, be insufficient to surmount the threshold if, for example,
there are other factors which persuade the court that society
will
probably be endangered by the appellant’s release or there is a
clear evidence of an intention to avoid the grasp of
the law.
The court will also take into account the increased risk of
abscondment which may attach to a convicted person who
faces the
known prospect of a long sentence.”
[5]
[29]
Accordingly, this court will not be
persuaded to grant bail merely because the applicant obtained leave
to appeal from the Supreme
Court of Appeal. The court will have
to make an independent finding to determine the real prospects of
success on conviction
coupled with all other relevant circumstances
of this case. Having said this, it should be mentioned that in
evaluating the prospects
of success, it is not a function of this
court to analyse the findings of the court
a
quo
in great detail. As was found
in
S v Viljoen
[6]
,
if this is done, it would become a dress rehearsal for the appeal to
follow. The consideration whether bail should be granted
or not
should be confined to reasonable boundaries, subject to the
applicable legislation and the rights of an applicant.
[30]
The conviction of the applicant was
premised on limited evidence. First, he was identified as a
driver of a vehicle which
transported the perpetrators from the crime
scene by way of a dock identification by Ms Motaung, a witness who
previously made
a sworn statement to the effect that she would not be
able to identify the perpetrators who committed this offence. This
was also
the reason, according to the investigating officer’s
evidence, why no identification parade was held. Second, the
only
other admissible evidence against the applicant was that the
applicant was part of a group that made threats previously that they
will shoot people that interfere with their taxi routes. Despite this
unreliable identification of the applicant, the court
a
quo
went ahead to make a finding that
the applicant acted in the pursuance of a common purpose with his
co-accused to commit these crimes.
I am of the view that there
is a likelihood that a court of appeal may set aside the conviction
of the applicant. In my view,
the applicant has a strong case
on appeal which would mean that, in my view, the conviction is
demonstrably suspect. This factor,
in my mind, is the one outstanding
feature why the court must consider the granting of bail.
[31]
This finding does not mean that the
applicant should be released on bail. This court must still
consider whether the applicant
is a flight risk or not.
[32]
A strong argument was advanced on behalf of
the State that the applicant has provided insufficient particularity
in his affidavit
to convince the court that he is not a flight risk.
For instance, the applicant failed to provide the court with the
particularity
of his assets and the value thereof. The court was
referred to the matter of
Beetge, supra.
In that matter the court concluded that
insufficient information was provided about the personal
circumstances of the applicant.
But importantly, the court concluded
as far as the strength of the State’s case, that the objective
elements of the evidence
tended to show that the State’s case
was by no means weak. The corollary was that, according to the
finding, the appellant’s
prospects of success in that matter
could not be categorised as strong.
[7]
This finding distinguishes the application in
casu
from the
Beetge
case
.
[33]
The applicant was previously out on
bail but the circumstances have now changed materially. He has
now been convicted and
has been sentenced to a long term of
imprisonment. Despite this, I am of the view that the applicant
has indicated that he
would not abscond should his appeal not be
successful. He already served more than 7 years of his sentence and
may become eligible
to be granted parole at some stage. He has
provided the court with his address and the court accepts his
evidence that he
has no ties, either family or business related,
outside the Republic of South Africa. He has no travel
documents and in my
view, has proven on a balance of probabilities
that he will not abscond.
[34]
This is not a matter in which the
conviction could possibly be altered to a conviction which will still
lead to a sentence of incarceration
as was the case in
S
v Oosthuizen & another.
[8]
In this matter, the court has concluded that before bail pending
appeal can be granted, there has to be a real prospect in relation
to
success on conviction and that a non-custodial sentence might be
imposed, before a further period of detention would be unjustified
(see: paras [28] and [29]of this judgment). There is no midway as far
as the the case of the applicant is concerned. Either he
is going to
be acquitted and his sentence set aside or his appeal is going to
fail and the term of imprisonment will remain long
term. I am of the
view that the former is the more likely scenario, though this really
remains an issue for decision by the court
of appeal.
[35]
I asked counsel for the applicant to
establish when this appeal would be heard by the full court.
This court has been provided
with a document from the Registrar of
Full Court Appeals, Gauteng Local Division, Johannesburg, which reads
as follows:
“
Please
be advised that the reconstructed full court record has been
forwarded to the Director of Public Prosecutions for enrolment
on
10/12/2021 concerning the prosecution of the appeal.”
[36]
Consequently, if the applicant is not
granted bail he will remain in custody and he will continue to serve
his sentence for a further
approximately 10 months. In my view,
the undue delay of this appeal for a period of approximately four
years is a further
factor which the court should consider when
deciding whether the applicant should be release on bail.
Considering this factor,
together with the more than reasonable
prospect of success on appeal and the applicant’s personal
circumstances, this court
finds that the applicant, on a balance of
probabilities, established that exceptional circumstances do exist
which in the interests
of justice permit his release on bail. I find
it fit, as contemplated in section 321, that the applicant should be
released on
bail and that the execution of his sentence be suspended.
[37]
As far as bail conditions are concerned,
the court will order that the applicant report to the Vosloorus
Police Station as will
be stipulated in the Order.
[38]
The applicant has previously been out on
bail of R3,000 but in light of the change in circumstances, I am of
the view that this
amount should not be increased to R10,000.
[39]
In the result, the following order is
issued:
(1)
That
bail pending the appeal to the Full Court of this Division is
granted.
(2)
The
applicant’s release on bail is subject to the following
conditions:
a.
Payment in the amount of R10,000;
b.
The
applicant shall prosecute his appeal in the manner and within the
time periods prescribed by the Rules of Court, failing which
his bail
shall be cancelled forthwith. In this regard the date of 10
December 2021 has been provided for enrolment.
c.
The
applicant shall report to the Vosloorus Police Station between the
hours of 6am and 6pm on Wednesday and Saturday of each week.
d.
The
applicant shall reside at his given residential address situated at
480 Blue Gum Street, Extension 10, Boksburg.
e.
Should the applicant plan to visit his home
situated in Jozini, KwaZulu-Natal, he should inform the investigating
officer of his
intention to do so and the duration of his stay, seven
days before departure thereto.
f.
The applicant shall notify the registrar of
this court in writing, of any change of his residential address in
Boksburg seven days
prior to such change.
g.
The
applicant shall report to the Vosloorus Police Station within 48
hours of written notice to the effect that his appeal has been
unsuccessful and he must submit himself to continue with the
remaining term of imprisonment. This notice can be served on
him at his residential address or changed residential address.
h.
The
applicant is prohibited from applying for any passport.
R
STRYDOM
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DICISION
JOHANNESBURG
Date of hearing:
16 February 2021
Date of judgment:
24 February 2021
Appearances
:
On behalf of the
Applicant:
Adv. S
Nobangule
On behalf of the
Respondent:
Adv. VT Mushwana
[1]
2012 (1) SACR 292 (SCA)
[2]
2007 (2) SACR 470 (SCA)
[3]
2020 (1) SACR 329 (SCA)
[4]
See
Beetge
v S
(925/12)
[2013] ZASCA 1
(11 February 2013); see also my judgment
S
v
Zondi
2020 (2) SACR 436
(GJ)
[5]
See also
Babuile
and others v S
(CC32/2014)
[2015] ZAGPPHC 1110 (13 October 2015)
[6]
2002 (2) SACR 550
(SCA) at 561 G-I
[7]
Beetge
para
[10]
[8]
2018 (2) SACR 237
SCA