About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 243
|
|
Lekgua v S (A1030/10) [2010] ZAGPPHC 243 (22 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA
)
APPEAL
CASE NO: A1030/10
Regional
Case number: 14/1119/06
DATE:
22/12/2010
In
the matter between:
DIALE
PH
ILLIP
LEKGAU
..........................................................
APPELLANT
and
THE
STATE
….........................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA.
J.
[1]
This is an appeal against the judgment of the magistrate Mr Makgoba
on 26 October 2010 refusing to admit the appellant to bail.
The
relevant bail application was the third one and was premised on
alleged new facts.
[2]
The grounds upon which the appeal is brought as tabulated on the
notice of appeal are that the magistrate: 2.1 "erred
and
misdirected himself in finding that the appellant has not discharged
the onus of adducing evidence which satisfy the court
that
exceptional circumstances exist which in the interest of justice
permit his released on bail; Section 60(11)(a) of Act 51
of 1977; S v
Dhlamini
1999 (2) SACR 15
(CC);Botha
2002 (1) SACR 222
(SCA) S v Mauk
1999 (2) SACR 479
(W). 2.2. 'in failing to consider that the
appellant only needed to discharge the
onus
in
terms of Section 60(11 )(a) of Act 51 of 1977 on a balance of
probabilities Mauk
1999 (2) SACR 479
(W); S v Maki
1994 (2) SACR 630
(EC)."
[3]
It is common cause that the appellant was arrested in April 2006 and
has been in custody since. He pleaded not guilty to 24
counts in
court 8 at the regional court in Pretoria. The case started in 2007.
He is facing the following counts:
3.1
x
7 housebreaking with intent to steal and theft read with
s262
(1) and S264 of the Criminal Procedure Act;
3.2
x
1 housebreaking with intent to rob and robbery with
aggravating
circumstances as defined in s1 of Act 51 of 1977 read with
s51(2)
,
52
(2,
52A
and
52B
of the
Criminal Law Amendment Act 105 of 1997
, and
read with s262(1) and S260 of the Criminal Procedure Act;
3.3
x
3 theft of a motor vehicle;
3.4
x
4
robbery
with aggravating circumstances defined in s1 of Act 51 of 1977 read
with
s51(2)
,
52
(2,
52A
and
52B
of the
Criminal Law Amendment Act 105
of 1997
;
3.5
x
3 kidnapping;
3.6
x
2 attempted murder;
3.7
x
1 possession of a firearm;
3.8
x
1 possession of ammunition;
3.9
x
1 escaping.
[4]
It is also common cause that the appellant is facing various schedule
6 offences which attract the provisions of
s60
(11) (a). Bail in such
situation must be granted if the appellant satisfies the court that
the interest of justice so permit. I
shall revert to this issue in
due course.
[5]
As indicated earlier, this appeal relates to a third bail application
on new facts brought by the appellant. He was first refused
bail. He
subsequently brought two bail applications on new grounds to no
avail. I do not intend to focus on the previous aborted
bail
applications.
[6]
It is common cause that this appeal emanate from the refusal of the
magistrate to permit on ail in respect of the case where
he is facing
24 counts in court 8 in the regional court Pretoria. He was also
facing another count in court 10 also in the regional
court in
Pretoria. He was and is stiil facing other charges in Ladysmith. He
has not applied for bail in the Ladysmith matter.
He has not been
granted bail in the last mentioned case. He has since been discharged
in terms of
s174
in the court 10 matter. It is common cause between
the parties that the discharge of the appellant in court 10
constituted a new
fact, especially because this became the position
after all the previous bail efforts failed.
[7]
It was submitted on behalf of the appellant that the magistrate
misdirected himself in that after finding that the fact that
the
appellant was discharged in terms of
s174
of Act 51 of 1977 this was
a new fact
1
,
he however at his conclusion found that there were no new facts
2
.
It is submitted that the magistrate after finding that there was a
new fact should have proceeded to examine the other facts to
determine whether the appellant has not acquitted himself of the
onus
placed
on him that the interest of justice permits that he be released on
bail.
[8]
It was further submitted on behalf of the appellant that the
Constitution of the Country places emphasis on civil liberty and
that
the Court should consider granting bail to the appellant since the
magistrate failed to interrogate whether the appellant
has acquitted
the
onus
resting
on him, which must be done on a preponderance of probabilities.
[9]
The evidence of the appellant in respect of the bail application can
be summarised as follows. His counsel representing him
in the matter
in court 8 has advised him that the State's case against him is weak.
There is no affidavit by his counsel or his
attorney filed to
buttress this alleged opinion of the weakness of
the
case against. The State in opposing bail previously had contended
that it has a strong case against him, relying on the case
in court
10 as well. Notwithstanding the alleged strength of the case against
him he has since been discharged in terms of s174
in respect of the
court 10 case. The case in Ladysmit started in 2006 in Kwa-Zulu and
it has not been finalized as yet. This
Ladysmith case has
been taken on review at Pietermaritzburg High Court. The
court 8 matter was delayed on account,
inter
alia,
the
prosecutor having taken ill. The case was heard on 11, 12 and 13
January 2010. The case has since been set down for hearing
on 11, 12
and 13 January 2011. He has been advised by his counsel that it would
be difficult for the State to prove the case against
him, because
there were certain technical difficulties regarding the fingerprint
evidence
[10]
When he initially brought the bail application in this matter he was
a man of strong means, strong emotional status, strong
financial
means and strong family ties with his wife. The relationship with his
wife has since deteriorated to such an extent that
his wife has
instituted divorce proceedings against him because his absence from
home makes it impossible for him to assist in
the upbringing of their
twin boys who are now 6 years old. His mother is assisting him in
running his business which is now going
down as the result of his
incarceration. He wants to be released on bail so that he can save
his marriage and be present for his
boys to grow with two parents.
[11]
Under cross examination he conceded that he is linked with
fingerprints in respect of counts 1, 2,3, 5, 6, 7,8 and 18. He said
that he cannot remember being identified in respect of counts 9 and
12. He conceded that there was an expert witness who testified
that
his DNA was found on a balaclava linked to the scene of crime. He
conceded that there were almost 50 witnesses whose evidence
has been
led. He however disputed that there was a chain of evidence that
would secure his conviction. He conceded that he has
not brought a
bail application in the Ladysmith matter.
[12]
The only witness called by the State was captain Mashabela. He read
into the record his affidavit opposing the bail being granted
to the
appellant. The essence of his affidavit is to confirm that fact that
the appellant is facing various counts,
inter
alia,
armed
robbery, house robbery and theft of motor vehicle. The appellant is
linked in the Ladysmith case by a s204 witness and he
must appear at
Escort on 7 December 2010. His experience is that the police struggle
to trace suspects once they have been released
on bail in respect of
serious cases against them.
[13]
The magistrate, in considering whether to or not to grant bail
accepted that he had to decide whether the appellant has placed
substantial facts that are new, relying on S v Armas 1996 (1) SACR
and S v Van Wyk
2005 (1) SACR 41
SCA.
[14]
With regard to the Ladysmith matter the magistrate took into account
the fact that the appellant had not applied for bail in
that case.
With regard to the strength or otherwise of the merits of the case he
took the view that there were no facts placed
before
him. He could not decide whether the fact that the appellant had not
applied for bail in that case is a new fact.
[15]
The magistrate accepted, quite correctly in my view, that the fact
that the appellant was discharged in the court 10 matter
is a new
fact.
[16]
The magistrate considered the marriage and his business and
concluded, relying on the S v Van Wyk case
(supra)
that
these are not new facts. I agree with the finding of the magistrate
in this regard. An incarceration of a married person has
the very
potential of placing strains on the marriage right from the very
moment of the arrest. This is an inherent and perennial
problem those
who expose themselves against the law face. The appellant was
arrested in 2006. He has on more than one occasion
brought bail
application. The fact that there is now a divorce case pending cannot
be regarded as a new fact.
[17]
The appellant's mother is running his business. It would seem that
the business has been running ever since his arrest in
2006.
The appellant has not placed any financial statements to demonstrate
that the business is having a downward spiralling effect
as the
result of it being run by his business since his arrest. The
magistrate in my view cannot be faulted in his finding that
this is
not a new fact.
The
magistrate accepted the evidence that according to an expert there is
DNA of the appellant found on the balaclava linked to
a scene of
crime. He concluded that the appellant has not placed substantial
evidence to show that this evidence will not stand.
He concluded that
the appellant was relying on pure speculation and hearsay evidence
that the DNA evidence would not stand.
In
casu
the
magistrate quite correctly held the view that the appellant must
place substantial facts that persuade the court that there
are new
facts. In this regard the court must also have regard to the
prima
facie
strength
of the State's case.
[20]
In the matter of Van Wyk (supra) it was pointed out that the
appellant under s60(11)(a) involving schedule 6 offences the
appellant bears the onus of proving that there exists exceptional
circumstances that in the interest of justice permit his release
on
bail. With regard to s60(11) (b) the
onus
is
lighter as there is no need for the appellant to prove the existence
of exceptional circumstances but that the interest of justice
permit
that he be released on bail.
[21]
The contention that the magistrate contradicted himself in first
finding that the discharge of the appellant is a new fact
and later
finding that there were no new facts is in my view misplaced. The
magistrate quite correctly accepted that it is a new
fact that the
appellant was discharged in count 10. He however proceeded to
interrogate the other factors, as I have already pointed
out herein
above. In my view, a single new fact cannot be considered in
abstract. It must be viewed in the totality of all the
other factors
placed before the court. The magistrate considered all the other
factors as well and concluded that there are no
new facts of
substance. But assuming that indeed the magistrate misdirected
himself in this contradiction, that would only mean
that this court
must then consider whether the appellant has placed enough evidence
that demonstrate that there exists exceptional
circumstances that in
the interest of justice permit that he be released on bail.
[22]
The appellant faces,
inter
alia,
a
count of escaping. The appellant has not addressed this charge in his
bail application. But an offence of this nature reveals
the
inclination on the part of the appellant to avoid being brought to
book. The appellant is indeed facing long imprisonment in
the event
he was to be convicted on any of the other charges. Further, the
trial of the appellant is scheduled for January 2010.
[23]
I am conscious of what was said in S v Jonas
1998 (2) SACR 677
at
678h-l and 679g-h; S v Schietekat 1999(1) SACR 100 h; S vThornhill
1998 (1) SACR 177
at 180h-181d. I am conscious of the fact that:
"12(1)
everyone has the right to freedom and security of person, which
includes the right—
(a)
not to be deprived of freedom arbitrarily or without just cause."
In my view, the very fact that the appellant has been
arrested on
certain allegations, it is the "the just cause" that has to
be adjudged during the trial. It then requires
that in deciding
whether such liberty must remain encroached and restricted, pending
the finalization of the criminal case requires
to be approached with
a measure of some flexibility, not rigidity, guided by the peculiar
circumstances of that particular case.
'35(1) everyone who is
arrested for allegedly committing an offence has the right—
(f)
to be released from detention if the interest of justice permit,
subject to reasonable conditions.' The inclusion of the phrase
"...if
the interest of justice permit" dove tail to the limitation of
rights in accordance with section 36 of the Constitution,
which
provides for such rights as entrenched in the Bill of Rights to be
limited to the extent such limitation is reasonable."
[24]
The appellant is facing serious offences which were committed
between 5 February 1999 and 25 May 2005, a total of 24 counts.
This
is in my view, an aspect that demands that a stricter approach be
taken in balancing the interest of the appellant against
that of
society. Certainly the interest of society is that those who engage
themselves in wholesale criminal activity must be brought
to book.
Where the case as in casu has progressed to an extent that there are
about 50 witnesses who have already testified and
the case is
scheduled to be proceeded with in due course, it certainly cannot be
in the interest of justice that the appellant
should be released on
bail.
[25]
Expressing a personal opinion, I am of the considered view that bail
in cases where a person is facing a multitude of counts;
bail should
not be lightly granted. There is in, my view, a need to force a
paradigm shift on the mind of the citizenry as a whole,
to accept
that criminal activity, especially wholesale criminal activity will
no longer be tolerated and that bail will not be
granted under these
circumstances.
[26]
in the circumstances, I am unable to find that the magistrate
materially misdirected himself in refusing to admit the appellant
on
bail. Assuming that 1 am wrong on this aspect, which is not conceded,
I find that the appellant has not shown that there exists
exceptional
circumstance that warrant in the interest of justice he be released
on bail.
[27]
Consequently the appeal against refusal of bail is dismissed.
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE :
21
- 12 - 2010
DATE
OF JUDGMENT:
22
- 12 - 2010
APPLICANT'S
ADV :
B
MATOME
DEFENDANTS
ADV :
MRS
C CARSTEIN-SMIT
1
Page
37
line 12-16 of the record.
2
Page
45 line 24 of the record.