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[2021] ZAGPJHC 71
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D[....] v S (A53/2021) [2021] ZAGPJHC 71 (25 June 2021)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: YES
(3)
REVISED: YES
[25
June 2021]
CASE
NO: A53/2021
In
the matter between:
D[....],
J[….] M[….]
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MUDAU,
J:
[1]
This
is an appeal against the decision of a Regional Magistrate, Palm
Ridge, in the cancellation of the appellant’s bail
and the
forfeiture thereof in terms of the provisions of section 66(3) of the
Criminal Procedure Act 51 of 1977 (“the CPA”)
in favour
of the State. Before the court
a
quo
,
the appellant has pending charges of attempted murder, assault with
intent to do grievous bodily harm, contravention of a protection
order as envisaged by the relevant provisions of the
Domestic
Violence Act, 116 of 1998
of which his estranged wife, Mrs N[....]
L[....] D[....], is the complainant. He also faces a charge with
regard to failure to
disclose previous convictions in violation of
the provisions of
section 60
(11B) of the CPA.
[2]
The
grounds relied upon by the appellant in attacking the decision of the
Magistrate to refuse the application for bail are the
following, and
I quote in relevant parts, from the notice of appeal:
“
1.
The honourable court erred by exercising its discretion to cancel the
appellant’s bail in terms of
section 68
of Act 51 of 1977
wrongly and in so doing, materially erred in fact and law
…
3.
The honourable court erred by not accepting the version of the
appellant that his decision to contact the, complainant was not
directed and/or based on any of the grounds stated in section
68(1)(a) to (f) of Act 51 of 1977, nor did he communicate with the
complainant in respect of the pending criminal matter.
4.
The honourable court erred by not considering the factual context and
circumstances which led to the appellant's decision to
call his
estranged wife and that he had no intention (
mens rea
) to be
in deliberate breach of his bail conditions.
5.The
honourable court erred by not considering or properly considering the
evidence of the complainant that the telephone call
was very short in
duration (less than a minute), and at no time did the appellant
threaten her, intimidate her or even refer to
the pending criminal
case, and that the only purpose of the call was to plea with her to
reconcile and/or allow the appellant to
see his children.
6.
The honourable court erred and misdirected itself by finding that the
appellant, under the circumstances, was at fault and as
a result had
alternatives than to communicate directly with the complainant.
7.
The honourable court misdirected itself and erred by not considering
the evidence of the appellant that was a desperate individual,
who at
the time of contacting the complainant was desperate and emotionally
upset.
8.The
honourable court erred and misdirected itself by not finding that the
delay in reporting the breach of the bail condition
itself confirmed
the fact that the complainant on the probabilities did not regard the
breach as a serious breach, nor on the accepted
evidence was the
breach of the bail condition of a serious nature at all…”.
[3]
When
the application was launched, reference was made, in addition to the
provisions of section 66(1), to sections 67A as well as
68 of the
CPA. The procedures referred to in sections 66,67A and 68 of the CPA
are distinct. They are clearly intended to serve
different
circumstances following the granting of bail. Section 66 of the CPA
provides as follows:
“
(1)
If an accused is released on bail subject to any condition imposed
under section 60 or 62, including any amendment or supplementation
under section 63 of a condition of bail, and the prosecutor applies
to the court before which the charge with regard to which the
accused
has been released on bail is pending, to lead evidence to prove that
the accused has failed to comply with such condition,
the court
shall, if the accused is present and denies that he or she failed to
comply with such condition or that his or her failure
to comply with
such condition was due to fault on his or her part, proceed to hear
such evidence as the prosecutor and the accused
may place before it.
(2)
If the accused is not present when the prosecutor applies to the
court under subsection (1), the court may issue a warrant for
the
arrest of the accused, and shall, when the accused appears before the
court and denies that he failed to comply with the condition
in
question or that his failure to comply with such condition was due to
fault on his part, proceed to hear such evidence as the
prosecutor
and the accused may place before it.
(3)
If the accused admits that he failed to comply with the condition in
question or if the court finds that he failed to comply
with such
condition, the court may, if it finds that the failure by the accused
was due to fault on his part, cancel the bail and
declare the bail
money forfeited to the State.
(4)
The proceedings and the evidence under this section shall be
recorded.”
[4]
Section
67A of the CPA on the other hand provides as follows:
“
Any
person who has been released on bail and who fails without good cause
to appear on the date and at the place determined for
his or her
appearance, or to remain in attendance until the proceedings in which
he or she must appear have been disposed of, or
who fails without
good cause to comply with a condition of bail imposed by the court in
terms of section 60 or 62, including an
amendment or supplementation
thereof in terms of section 63, shall be guilty of an offence and
shall on conviction be liable to
a fine or to imprisonment not
exceeding one year”.
[5]
The
proceedings in terms of s 66 are completely separate from a trial
involving contravention of section 67A of the Act.
[1]
Prior to the insertion of section 67A, the CPA did not make
non-appearance, or non-compliance with a bail condition, punishable.
Forfeiture of bail money and loss of liberty were the 'sanctions’.
[2]
Section 67A, from its introduction, creates a statutory offence
with the burden of proof on the prosecution to prove its case
beyond a reasonable doubt, like in any other criminal trial, with a
charge sheet drawn and a formal trial held for that purpose.
[3]
With regard to proceedings as envisaged in section 66 however, the
State bears the onus to prove on a balance of probabilities
that the
accused has breached the conditions of bail due to fault on his part.
[6]
Section
68 on the other hand provides in relevant parts as follows:
“
(1)
Any court before which a charge is pending in respect of which bail
has been granted may, whether the accused has been released
or not,
upon information on oath that—
(a)
the
accused is about to evade justice or is about to abscond in order to
evade justice;
(b)
the accused has interfered or threatened or attempted to interfere
with witnesses;
(c)
the
accused has defeated or attempted to defeat the ends of justice;
(d)
the
accused poses a threat to the safety of the public or of a particular
person;
(e)
the
accused has not disclosed or has not correctly disclosed all his or
her previous convictions in the bail proceedings or where
his or her
true list of previous convictions has come to light after his or her
release on bail;
(f)
further
evidence has since become available or factors have arisen, including
the fact that the accused has furnished false information
in the bail
proceedings, which might have affected the decision to grant bail; or
(g)
it
is in the interests of justice to do so,
issue
a warrant for the arrest of the accused and make such order as it may
deem proper, including an order that the bail be cancelled
and that
the accused be committed to prison until the conclusion of the
relevant criminal proceedings.
”
[7]
Section
68(1) is clearly distinct from sections 66 and 67A in that it
requires that 'information on oath’ be received by the
court
before a finding can be made regarding the existence of one or more
of the grounds in s 68(1)
(a)
to
(g)
which justifies the cancellation of bail. Reliance by the prosecution
on all of the three sections for purposes of the application
launch
was, therefore, misconstrued.
[8]
However,
it is clear that the learned Regional Magistrate was alive to this
and made a determination on the basis of section 66
of the CPA, as
apparent from the record of proceedings. She was at pains in her
judgment, to point out the distinctions in the
sections of the CPA
relied upon by the state as alluded to above. Nothing turns on the
approach adopted by the Magistrate as the
appellant was legally
represented throughout by an SC and accordingly, was not prejudiced.
There is no suggestion on papers before
me that there was any
prejudice suffered. In cancelling the applicant's bail, it is clear
from the record that the Magistrate acted
in terms of the provisions
of s 66 (3) of the CPA. A suggestion that the order regarding this
matter was given is in terms of section
68 is therefore
ill-conceived.
[9]
Initially,
the parties agreed that the appeal may be disposed of on papers as
envisaged in terms of
section 19
(a) of the
Superior Courts Act 10 of
2013
. I subsequently directed the parties to file additional heads on
whether the matter is subject to appeal or review for purposes
of
Rule 53 of the Uniform Rules. Counsel maintained in supplementary
papers that the matter is appealable and if this court is
minded
otherwise, to invoke its inherent powers and dispose of the matter as
a review.
[10]
Counsel
for the appellant, Pistorius SC, contended in written submissions
that, since the question before this court challenges
the manner in
which the court
a
quo
exercised its discretion set out in
section 68
of the
Criminal
Procedure Act, the
correct remedy to follow is an appeal as was held
in
Nqumashe
v S.
[4]
The matter is not concerned with procedural irregularities, so the
argument went. Contrary to counsel submissions in this regard,
as
indicated above, the Regional Magistrate clearly exercised a
discretion in terms of
section 66(3)
and not in terms of
section 68
of the CPA. I return to this aspect below.
[11]
Turning
to the facts of the present matter, they are largely common
cause. On 6 January 2019, the appellant was granted bail
and he was
released on bail under certain conditions. Relevant for current
purposes is paragraph 4 of the bail conditions in terms
of which the
appellant was prohibited from making any direct or indirect contact
with the complainant regarding visitation rights
of their two minor
children. Paragraph 4 of this specific condition reads as follows:
“
The
accused is to refrain from any contact, direct or indirect with the
complainant, including social media and involving other
people until
the case is finalised."
[12]
In
paragraph 5 of the bail conditions, the court
a
quo
formulated it as follows:
"All
arrangements regarding contact and or visit to the children is to be
dealt with through the accused and the complainant's
legal
representatives”
.
[13]
On
14 April 2021 the appellant appeared before the Magistrate under
arrest, having surrendered himself, on which occasion the prosecutor
applied in terms of
s 66
of the CPA to lead evidence to prove that
the applicant had failed to comply with the abovementioned conditions
of bail. In support
of its application, the State presented three
sets of affidavits, two by the complainant dated 25 February 2021 and
9 March 2021
respectively, and that of the investigating officer in
charge of the case. The complainant also gave oral testimony. It is
common
cause that on 6 January 2021 the appellant, however, made a
telephonic call to the complainant at 10:27 pm from an undisclosed
number. From the voice, she recognized the caller as her estranged
husband against whom she had a domestic violence interdict. The
appellant suggested during the course of the call that he was
reaching out to her because he did not want lawyers involved any
further with regards to the children.
[14]
The
appellant further pointed out that he was aware that he was not
supposed to call her as per the bail conditions. The appellant
proposed reconciliation. She did not say a word, but after listening
for some time, dropped the call. In so doing, the appellant
breached
his bail conditions. The complainant deposed to her first affidavit
as indicated, on 25 February 2021 in which she stated
that the
appellant was in breach of his bail conditions.
[15]
A
warrant for the appellant's arrest was subsequently authorised. The
appellant was arrested after he surrendered himself to the
Brackenhurst police on 13 April 2021. Upon his appearance in court on
13 April 2021, the case was adjourned to 14 April 2021 for
a formal
application by the State for the cancellation of his bail. On 14
April 2021, a formal application was lodged by the State
for the
cancellation and forfeiting of the appellant's bail as a result of
the breach of the bail conditions set, which the appellant
opposed.
[16]
The
investigating officer, Jonas Kekana deposed to a confirmatory
affidavit. In that affidavit, he also alleged that there was a
text
message sent to members of the NPA in which the author stated that a
certain Mr Modise N Zwelake wanted an amounted of R500-000-00
in
return for the life of the complainant on behalf of the appellant.
The appellant allegedly expressed great concerns regarding
the high
costs of litigation in their pending divorce action and concomitant
division of the estate. It was further alleged that
the appellant had
assaulted his girlfriend, T[....]. The latter was allegedly paid
R350,000-00 not to report the matter to the
police.
[17]
In
the oral testimony, the complainant confirmed that she denied him
access to the children based on allegations that the appellant
wanted
to commit suicide coupled with the allegations that she was on a hit
list.
[18]
During
cross-examination however, she confirmed that the appellant, pursuant
to a
rule 43
application was granted permission to access the
children and that the visitation rights were subject to mediation by
the court
appointed social worker, which he exercised before the
suicide allegations surfaced. The services of the court appointed
social
worker has since been terminated by the appellant and she
feared for her and the children’s lives. The child who became
aware
of the message was also scared of the appellant. As to why she
deposed to her first affidavit on 21 February 2021, that was because
she was being sent from pillar to post. As to the second affidavit,
it was upon the advice of a Senior Public Prosecutor.
[19]
In
opposing the application, the appellant testified that he breached
the bail condition as he was desperate to see his two children
with
the complainant. He had asked her that they be civil. He denied any
knowledge of the SMS allegedly received by the complainant
referred
to above, and was not involved in any plot on the life of the
complainant which he subsequently reported to the police.
He denied
assaulting his girlfriend, T[....], or that he gave her R350,000-00
as hush money. During cross-examination however,
the appellant was
constrained to concede that the SMS, which had details of his contact
numbers and those of his girlfriend, T[....],
would have scared the
complainant. After the complainant had moved out of the common home
and was with her parents, she was shot
at four times, which he was
aware was the subject of the pending trial. The appellant in
corroboration with the fact that he did
not so assault or gave hush
money, called T[....] as his witness. T[....] denied that she had
been assaulted or given hush money.
[20]
At
the conclusion of evidence
by
both parties,
the
Magistrate found that the appellant had failed to comply with (or had
breached) the said bail condition and that the failure
to comply (or
the breach) had been due to the fault of the appellant and
accordingly cancelled
the
bail and declared the bail money forfeited to the State as indicated
above. It is this decision and order that the appellant
now seeks to
upset on appeal or alter on review. In cancelling the appellant’s
bail, the Regional Magistrate reasoned that
the appellant,
desperate
as he was, had options available to him rather than to breach the
conditions, in this case, to approach the complainant
via his
lawyers.
[21]
That
the judgment and order of the Magistrate in terms of
section 66(3)
is
not appealable and could only be challenged on review has been the
subject of judicial consideration in a number of matters.
In this
division, in
Pillay
v Regional Magistrate, Pretoria, and Another
,
[5]
the full bench held that, a withdrawal of bail does not amount to
'refusal’ of bail and the matter cannot therefore be brought
under
s 65
by way of such artificial reasoning.
[6]
[22]
From
the above judgments, it is clear that the weight of authority favours
the view that the proceedings in terms of
s 66
are only reviewable
and not appealable. I must be quick to point out however, that
cancellation of bail by a High Court is not
reviewable, but
appealable.
[7]
It is trite that court orders are to be obeyed. Anyone who does not
respect a court order, does so at their own peril. The disregard
of a
court order not only deprives the other party of the benefit of the
order but also impairs the effective administration of
justice.
[23]
In
this case, the appellant was quite clearly aware that he was not
permitted to be in direct contact with the complainant. This
is
clearly manifest by his use of a private cell phone number, in
respect of which the identity of the caller was hidden. The
conduct of the appellant also falls within the definition of
intimidation as well as harassment, under the circumstances of the
matter. It is no wonder that the complainant dropped the call when
she recognised that the appellant was the caller. It is of no
moment
that the call, as the appellant suggested, was not of long-duration,
or that a period of time elapsed, before she reported
the matter. The
conduct complained off amounted also, to self-help, which the apex
court
has
pointed out, is inimical to a society in which the rule of law
prevails
[8]
.
[24]
As
the Regional Magistrate concluded, the appellant had other legal
remedies to enforce his rights. If I was to be charitable, as
I am in
favour of the appellant by considering this matter as a review and to
condone non-compliance with review procedures, as
bail matters are
inherently urgent,
[9]
the appellant has not shown that the Magistrate erred in the
cancellation and forfeiture of bail. I cannot find any persuasive
reason to interfere, on review, with the discretion exercised by the
Magistrate in finding, as she clearly did, that (a) the
condition of bail prohibiting the applicant from contacting the
complainant had been breached and (b) the said breach
was
due to the fault of the appellant. The On the contrary, I am of the
opinion that the decision was correct. Accordingly, the
appeal stands
to be dismissed.
[25]
Accordingly,
I make the following order:
1.
The
appeal against the cancellation of bail and forfeiture of the bail
money is dismissed.
2.
The
review against the cancellation of bail fails and the order for the
cancellation of the bail and forfeiture of the bail money
is
confirmed.
T
P MUDAU
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
I
agree
M A MAKUME
Judge
of the High Court,
Gauteng Local Division,
Johannesburg
Date of Judgment:
25 June 2021
APPEARANCES
For the
Appellant:
Adv. P F Pistorius SC
Instructed
by:
Emile Viviers Attorneys
For the
Respondent:
Adv. J F Masina
Instructed
by:
DPP – JHB
[1]
S
v Williams
2012
(2) SACR 158
(WCC).
[2]
S
v Nkosi en Andere
1987
(1) SA 581
(T) and
S
v Bobani
1990
(2) SACR 187 (TK).
[3]
S
v Mabuza
1996
(2) SACR 239
(T); See also
S
v Luzil
2018
(2) SACR 278
(WCC) at para [13].
[4]
2001
4 AII SA 471 (NC).
[5]
1977
(1) SA 533 (T)
.
[6]
See
also
Ex
Parte Estate Phillips: In Re R v Phillips
1958
(1) SA 803
(N)
and
Jack
v Vermeulen NO and Another
1979
(1) SA 659 (C)
as
well as
Sebe
v Magistrate, Zwelitsha, And Another
1984
(3) SA 885 (CkS).
[7]
See
Pretoria
Portland Cement Co Ltd & another v Competition Commission &
others
2003
(2) SA 385
(SCA)
;
Nontenla
v Director of Public Prosecutions, Umtata, & Another
2003
(2) SACR 205 (Tk)
as
well as
S
v Porrit
2018 (2) SACR 274 (GJ).
[8]
Chief
Lesapo v North West Agricultural Bank
[1999] ZACC 16
;
2000 (1) SA
409
(CC);
1999 (12) BCLR 1420
(CC) at para 11
[9]
S
v Banger
2016
(1) SACR 115
(SCA).