About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 1
|
|
S v Beegte (925/12) [2013] ZASCA 1 (11 February 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 925/12
In the matter
between:
YVONNE BEETGE
.................................................................................
Appellant
and
THE STATE
,,........................................................................................
Respondent
Neutral citation
:
Beetge v The State
(925/12)
[2013] ZASCA 1
(11 February 2013)
Coram:
MAYA, SHONGWE and MAJIEDT JJA
Heard:
21
December 2012
Delivered:
11
February 2013
Summary:
Criminal
law – application for bail pending appeal – factors to be
considered.
__________________________________________________________________
ORDER
On appeal from:
North
Gauteng
High Court
(Pretoria) (Ismail J sitting as court of first instance):
The appeal is
dismissed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (SHONGWE,
MAJIEDT JJA concurring):
[1] The appellant
was indicted in the North Gauteng High Court, Pretoria (Ismail J) on
a charge of the murder of her fiance, Mr
Jacobus Christiaan Grundling
(the deceased). Despite her plea of not guilty, she was convicted as
charged. She was sentenced to
undergo a prison term of 15 years. Her
application for leave to appeal against her conviction to the full
court of the trial court’s
division was successful. However,
the court below refused her application to be released on bail
pending the appeal. This appeal
challenges that decision.
[2] The
appellant did not testify orally in the bail application and gave
evidence by way of affidavit. The court below accepted
her right to
do so but lamented the fact that she would not be subjected to
cross-examination, particularly in view of the affidavit’s
paucity on facts pertaining, among other things, to her financial
position. After considering the facts placed before it, the court
decided that granting bail would not be in the interests of justice
because
the amount of
R20 000 bail offered by the appellant would not be sufficient
inducement against abscondment in light of the
prospect of a lengthy
term of imprisonment if her appeal failed and the fact that it would
not be paid by her personally but
by her current fiance as she was
unemployed;
the appellant had
no settled address of her own and lived with her fiance with whom
she could break up, an event that would render
the authorities
entirely dependent on her to provide her address; and
the appellant
failed to disclose her financial circumstances.
[3] These findings
were strenuously challenged on appeal before us. It was contended on
the appellant’s behalf that (a) her
appeal has strong prospects
of success because her conviction was founded on materially flawed
circumstantial evidence, (b) it
was of no consequence that the bail
amount would not be paid by the appellant herself and (c) her
favourable personal circumstances
were accorded insufficient weight
by the court below. Thus, it was argued, the court below should have
found that the interests
of justice favoured the grant of bail.
[4] An application
to be admitted to bail after conviction is governed by
section 321
of
the
Criminal Procedure Act 51 of 1977
. These provisions prohibit the
suspension of a sentence imposed by a superior court by reason of any
appeal against a conviction
unless the trial court thinks it fit to
order the sentenced accused’s release on bail. Therefore, it
behoves the sentenced
accused to seek bail from the trial court. In
so doing, he or she must place before the court the necessary facts
that would allow
it to exercise its discretion in his or her favour
and grant bail. A court sitting on appeal does not readily interfere
with the
decision of the trial court because the latter court is best
equipped to consider the question of bail by reason of its intimate
involvement with the matter. Thus, a trial court’s refusal of
bail will be reversed only where the court failed to bring
an
unbiased judgement to bear on the issue, did not act for substantial
reasons or exercised its discretion capriciously or upon
a wrong
principle (
S v Masoanganye
2012 (1) SACR 292
(SCA)).
[5] The mere grant
of leave to appeal against conviction, which presupposes the
existence of prospects of success, is not on its
own sufficient to
entitle a convicted accused to release on bail pending appeal (
R v
Milne & Erleigh
(4)
1950 (4) SA 601
(W) at 603;
R v
Mthembu
1961 (3) SA 468
(D) at 471A;
S v Bruintjies
2003
(2) SACR 575
(SCA) para 6). The seriousness of the offence involved,
the risk of abscondment and the likelihood that a non-custodial
sentence
might be imposed are other factors which the court must also
weigh in the balance (
S v Masoanganye
para 14).
[6] The seriousness
of the crime of murder and the real prospect of a lengthy custodial
sentence therefor, if the appellant fails
to have her conviction
overturned on appeal, are beyond question. The enquiry requires more
focus on the appellant’s prospects
of success on appeal and
whether she poses a flight risk. The contention relating to her
prospects of success was based mainly
on contradictions contained in
two of the three post-mortem reports prepared by a key state witness,
the state pathologist, Dr
Nkondo, consequent to the post-mortem
examination she conducted on the deceased’s body. The deceased
had sustained three
gunshot wounds and the contradictions related to
the entry and exit positions and the track of a left neck wound which
the parties
agreed caused his death. The court below accepted the
pathologist’s explanation contained in the third report, which
was
based on her original notes, and dismissed the contradiction as
‘a human error which was tenable and clarified’ and
which
was not ‘fatal or suggested that the examination was not
properly done or conducted’. Indeed, the synopsis of
the
evidence in the judgment on conviction shows that nothing ultimately
turned on the inconsistency.
[7] The real dispute
concerned whether it was possible for the right-handed deceased, in
view of the nature and track of the fatal
wound, to shoot himself on
the left neck as the appellant and her ballistics expert, Mr
Wolmarans, claimed, a possibility that
was dismissed as impossible by
Dr Nkondo and the state’s ballistics expert, Mr Mangena.
According to the appellant the deceased,
a war veteran and
ex-soldier, was severely depressed and exhibited suicide tendencies,
frequently brandishing a firearm, before
his death. On the fateful
day, he first read to her a typed suicide note which was subsequently
recovered by the police at the
scene next to his body, and proceeded
to shoot himself in the body and face. She wrestled him over the
firearm in a bid to disarm
him, but did not know how the fatal shot
was inflicted because she had closed her eyes when it was discharged.
[8] To rebut this
version the state led, inter alia, the evidence of the deceased’s
longtime medical doctor, Dr Vermeulen,
who treated him regularly for
chronic pain and high blood pressure. According to the doctor, she
observed no symptoms of a psychological
disorder in the deceased. She
also did not believe that he was the author of the purported suicide
note because it was littered
with typographical errors which she said
were uncharacteristic of the deceased’s meticulous nature based
on her experience
from regular e-mail correspondence with him. As
indicated, the state’s expert witnesses discounted any
possibility that the
fatal wound was self-inflicted because of its
position and track. Mr Wolmarans, on the other hand, whilst not
disagreeing with
his state counterpart on the wound’s nature
and track, testified that it could have been self-inflicted and
physically demonstrated
how this could have occurred.
[9] The court below
found the state version of the events compelling and accepted it. The
court made strong adverse credibility
findings against the defence
witnesses, alternately describing the version of the appellant, whom
it found an unimpressive witness,
as ‘vague’,
‘inexplicable’ and ‘bizarre’. The court found
Mr Wolmarans’ hypothesis and
demonstration speculative and
unconvincing, especially in light of the appellant’s inability
to explain the firearm’s
position when the fatal shot was
fired. The court concluded that ‘[f]or a right handed person to
inflict that wound would
have required some ability in contortionism.
The exit wound would not have been where it was’.
[10] As to whether
the court below assessed the evidence properly and whether the
evidence indeed establishes the appellant’s
guilt, as was
found, is not for this court to determine. Suffice it to say that the
objective elements of the evidence tend to
show that the state case
was by no means weak. The corollary must then be that the appellant’s
prospects of success cannot
be categorised as strong.
[11] It remains to
consider the issue of risk of flight. It is so that the fact that the
appellant relies on others to pay her bail,
if granted, should not
prejudice her cause. But for the rest, I share the trial judge’s
misgivings. We are confined to the
four corners of a record which
unfortunately does not reveal much about her personal circumstances.
The sum of her affidavit is
that she is a 45 year-old, unemployed
woman with no discernible home or work background other than that she
was engaged to and
lived with the deceased at his house in Polokwane
around his death. She became engaged to another man with whom she
currently lives
at his house in a different province not very long
after the deceased died. She has adult, married children who
presumably lead
their own independent lives somewhere in Pretoria.
She has no passport or family and friends outside South Africa. She
has a fraud
conviction from 2004 and had a pending shoplifting case
at the time of the bail application (which we learnt during the
appeal
had since been withdrawn). She was admitted to R1 000
bail and received treatment for a nervous breakdown during her trial.
An acknowledgement of debt in the sum of R106 900 which she
apparently signed in the deceased’s favour, and about which
very little else seems to be known, came up in evidence during the
trial as mentioned in the judgment of the court below. The debt
constituted one of the reasons for the trial judge’s deep
concern about the appellant’s failure to explain the precise
state of her assets and liabilities and general financial status.
[12] I find it most
concerning that neither the appellant’s children nor her
current fiance, who would pay bail if granted,
did not depose to
affidavits in support of her application. Notably, in the unsigned
copy of her affidavit (one presumes in her
favour that the copy filed
with the court below was properly commissioned) which forms part of
the appeal record, whilst her fiance’s
name is mentioned, the
name of his employer is, inexplicably, left blank. An affidavit
deposed to by her fiance confirming her
address and their
relationship, which her own affidavit promises, is of course not
attached. One gathers only from statements made
in passing by her
counsel from the Bar that, allegedly, her children had visited her in
prison (this was presumably mentioned to
show that they were involved
in her life) and her fiance did not attend the bail hearing because
of work commitments. But there
is no real indication of who these
people are and no acceptable explanation as to why all three could
not depose to confirmatory
affidavits. They remain shadowy, almost
faceless figures, much like the appellant herself.
[13] It simply does
not help the appellant to argue that the state did not contest the
facts contained in her affidavit and that
they are therefore
sufficient. The burden to establish exceptional circumstances
justifying her release by adducing the necessary
facts to the court
lies squarely on her shoulders. Whilst it is a fact to be considered
in her favour that she diligently attended
her trial on a mere R1 000
bail, the fact is that her situation has changed dramatically. She
has been convicted of an extremely
serious offence. As I have said,
on the facts before us the state case can by no means be said to be
subject to serious doubt.
It is not a remote possibility that the
appellant’s conviction may be confirmed. And if that should
occur, she undoubtedly
faces lengthy incarceration. In my view, her
skimpy affidavit falls short of establishing her alleged ‘strong
emotional ties
to the country’ and that she has no independent
financial means. According to the record, during the hearing the
court below
pertinently raised the gaps in the appellant’s
affidavit and its willingness to hear another bail application at a
later
stage. Nothing precluded the appellant, who was legally
represented, from requesting an adjournment to provide better detail
about
her personal circumstances. As things stand, very little is
known about her. And there is no guarantee that even stringent bail
conditions would provide an adequate safeguard against the risk of
abscondment in the circumstances. The appeal must, accordingly,
fail.
[14] In the result,
the following order is made.
The appeal is
dismissed.
____________________
MML Maya
Judge of Appeal
APPEARANCES
FOR APPELLANT: K
Alheit
Instructed by:
Wessels Attorneys,
Mookghopong
Lovious Block
Attorneys, Bloemfontein
FOR RESPONDENT: SJ
Ntuli
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein