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[2011] ZAGPPHC 65
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Pretorius v S (CC91/2003) [2011] ZAGPPHC 65 (29 April 2011)
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE
NO: CC91/2003
DATE:29/04/2011
JOHAN
PRETORIUS
..............................................................................................
APPLICANT
AND
THE
STATE
.........................................................................................................
RESPONDENT
JUDGMENT
MABUSE
J:
(1)
This is an application, brought on new facts, by the Applicant to be
released on bail pending judgment. I will deal with the
new grounds
on which the Applicant, Johan Pretorius, brings this application. The
Respondent opposes the application on grounds
to which I will revert
later in the judgment.
(2)
On 12 July 2004 and in case no: A1041/04 the applicant and three
others brought an applications to be released on bail. In a
written
judgment that the Court handed down, the said applications for bail
were refused.
(3) The Applicant alone
makes this application. The application is made on an affidavit made
by the applicant. In the said affidavit,
the applicant has listed
seven grounds which he regarded as new grounds on the basis of which
he had planned to move his application.
Right at the commencement of
the arguments, Counsel for the respondent expressed his
dissatisfaction with some of the grounds on
which the applicant
sought to bring his bail application on the grounds that such
grounds, in particular the first, second and
fourth are the same;
that, with regard to the third ground, the applicant made certain
("the CPA");, and that the sixth
and seventh grounds
amounted to speculation.
(4) Counsel for the
applicant conceded the dissatisfaction pointed out by the
respondent's counsel. He agreed with the Respondent's
Counsel's
contention and indicated to the Court that he had only been briefed a
few days before the application came before Court.
He indicated
however that under those circumstances he would only proceed to argue
the application based on the third and fifth
grounds. He also put it
on record that the parties had agreed to proceed with the bail
application despite the fact that the record
of the bail proceedings
of 12 July 2004 was incomplete.
(5) Counsel for the
applicant argued that the determination of whether or not a ground on
which bail is brought is new must be made
against the background of
the old application. The first ground that he relied on was the
lengthy detention of the applicant. The
Court ruled that this ground
constituted new ground as the initial application was not premised on
this ground. Accordingly it
allowed the counsels to argue it.
(6) In support of this
ground, counsel for the applicant relied on the provisions of Section
35 of the Constitution of the Republic
of South Africa Act No 108 of
1996 ("the Constitution"), in particular: (i) the rights to
a fair trial, which includes
the right to have their trial begin and
conclude without unreasonable delay (s. 35(3)(d): (ii) the rights to
be released from detention
if the interests of justice permit,
subject to reasonable conditions (Section 35(l)(f); and, lastly on
the provision of section
39 of the Constitution. Counsel for the
applicant argued that the applicant should, according to the Canadian
Law, have been tried
within a reasonable time or, according to the
law of United States of America, have had a speedy of trial.
(7) According to him,
the delay in the commencement of the trial was caused by the
applications that the applicant had brought
between May 2003 and
October of the same year.
(8) The applicant relied
on the following ground;
"BETREFFENDE DIE
WAARSKYNLIKHEID DAT DIE BESKULDIGDE, INDIEN VRYGELAAT OP BORG, DIE
OPENBARE VEILIGHEID OF DIE VEILIGHEID VAN
ENIGE PERSOON SAL BEDREIG,
OF 'N BYLAE1 MISDRYF SAL PLEEG".
It was argued by the
Counsel for the applicant that in 2004, the applicant regarded
himself as a radical person but has since changed.
The genesis of his
change was said to be the following;
"5.1 Ek het erken ek
was in 'n gewapande stryd wat tot 'n einde gekom het. In hierdie
verband het die optrede van President
Zuma, deurdot hy bereid was om
'n gesprek te tree met organisasies wat die Boerevoik verteenwoordig,
my oortuig dot daar wel ruimte
is vir toekomstige dieplomatiese
resolusie van die kwessie van Boere selfbeskikking. Ek is oortuig dat
hierdie weg die aangewese
pad is om te loop. Hierdie was nie die
geval ten tye van die bewind van Mnr Nelson Mandela nie."
(9) In order to show that
the applicant is now a changed person, in 2009 he made
admissions
in the trial before Jordan J. He only realised seven years later that
he was
wrong.
(10) It was argued
furthermore that there is no possibility of the applicant interfering
with witnesses in view of the fact that
all the State witnesses have
testified and that the applicant, if granted bail, will be prepared
to comply with any condition that
the Court may deem fit to impose on
him.
(11) The respondent
opposes this application, as I indicated earlier. Some of the grounds
on which the respondent opposes the application
were placed on record
by the Counsel for the respondent while others appear clearly from
the affidavit of Johannes Hendrick Vreugdenburg
("
Vreugdenburg") which was used to oppose this application.
(12) Counsel for the
respondent did not dispute the argument by counsel for the applicant
that the trial was heard over a rather
long period. He conceded
furthermore that up to date of this application it has not been
concluded. He attributed the delay in
the conclusion of the trial to
the complexity of the matter and the numerous applications that were
brought by some of the accused,
including the applicant, in that
case. He denied that the applications which were brought during the
trial of the matter were confined
to a period between May 2003 and
October 2003. He argued that even after October 2003 several of the
accused, including the applicant,
brought numerous applications of a
varying nature while the trial progressed and that as a consequence
of such applications, the
trial could not proceed until each one of
those applications had been determined.
(13) Furthermore, so
argued Counsel for the respondent, there were a total of 22 accused
in the matter and 161 witnesses. Each witness'
testimony was followed
by a lengthy cross-examination by counsel for the accused. For those
reasons the trial became extended.
(14) He confirmed that
the applicant himself only made admissions in the trial in 2009. He
made himself available for cross-examination
by the respondent's
counsel by taking the witness box but thereafter, for no valid reason
whatsoever, refused to testify further.
He refused to subject himself
to cross-examination by the State in the trial.
(15) Counsel for the
State conceded that the ground upon which the applicant brought the
application was indeed a new ground but
argued that it was not
sufficient to for the applicant simpliter to state the new grounds.
He submitted that:
"daar moet gekyk
word no die rede waarom hy (die opplikant) inhegtenis vir so 'n long
tyd is."
He submitted that it was
common cause between the parties in this matter that one of the
possible reasons that caused the matter
to be heard over a long
period was its complexity.
(16) It was argued in
the application that the evidence in the trial demonstrated that the
applicant was untrustworthy. In the
trial the applicant admitted that
he had lied. He told the trial Court that it was his Counsel in that
trial who advised him to
lie.
(17) According to the
affidavit of the investigating officer, Vreugdenburg, there is a
threat that, if released on bail, the applicant
will flee or delay
the trial and make it difficult for the case to progress. The
respondent is content that the evidence in the
trial is strong and
the chance that the applicant will be convicted is very strong.
(18) On the applicant's
contention that he was radical during the reign of President Mandela,
the respondent's view is that this
is not correct. The applicant
committed some of the offences he has been charged with in the trial
during the presidency of Thabo
Mbeki, after Mr Mandela had ceased to
be the president of this country.
(19) It is common cause
between the parties that the offence with which the applicant has
been charged falls under Schedule 5 of
the CPA. Section 60(ll)(b) of
the CPA provides that:
"Notwithstanding any
provisions of this Act, where an accused is charged with an offence
referred to-
(b) in Schedule S, but
not 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,
adduces evidence which satisfies
the Court that the interests of
justice permit his or her release."
(20) The duty rests on
the applicant to satisfy the Court on the balance of probabilities
that the interests of justice permit his
release on bail. See S v.
Hlongwa 1979(4) SA 112 (D); S v. Vermaas 1996(1) SACR 528 (T); S v.
Tshabalala 1998(2) SACR 259 (C) and
Siwela v S (2000)(1) ALL S. A.
389 (W).
(21) The aforementioned
section provides that the applicant "adduces evidence".
Evidence in support of bail may be presented
orally or by way of an
affidavit. In S. v. Pienaar 1992(2) SASV 178 (W) the Court stated as
follows:
"in my view
therefore there is nothing in the Criminal Procedure Act that renders
the use of affidavits in bail applications
impermissible. Obviously
an affidavit would have less probable value than oral evidence which
is subject to the test of cross-examination.
At the same time an
affidavit wilt carry more weight than a mere statement from the Bar."
(22) It was indeed so
that before the amendment of Section 60 of the CPA, the accused who
applied for bail took the witness box
and gave viva-voce evidence
whereafter he would be cross-examined by the prosecution. Adducing
evidence by way of an affidavit
developed from the interpretation of
the word "adduce in section 60(11) (a) and (b) of the CPA. The
introduction of the word
"adduce" was not intended to
change the character of bail application proceedings but merely
indicated that evidence
could be put before Court in bail application
proceedings by a way of an affidavit.
(23) The use of
affidavits in bail proceedings, although permissible, does not
exonerate the applicant from subjecting himself
to cross-examination
in the witness box. All that an accused or applicant who has chosen
to adduce his evidence by way of an affidavit
has to do get into the
witness box, take an oath or affirmation and state that his evidence
is all contained in an affidavit and
that he adopts the contents of
the affidavit as his evidence. The applicant in such a case does not
have to give evidence of what
is already contained in an affidavit.
Cross-examination will then follow thereafter.
(24) In my view, the use
of an affidavit by an accused person to place evidence before a Court
in an application for bail, will
only be of assistance to both the
applicant and the Court in order to save time of listening to
viva-voce evidence and furthermore
in a case where the respondent,
that is the State, does not intend opposing such a bail application.
Where it is clear that the
State or respondent opposes the bail
application the procedure of placing evidence before Court by using
an affidavit without subjecting
himself to cross-examination will put
the application at risk. It is clear from Mathebula v. S
[2010] 1 All
S.A. 121
at paragraph 11 on p. 124 that an applicant for bail can
only be found to have discharged his onus if he opened himself to
cross-examination.
The said paragraph 11 states as follows:
"In the present
instance the appellant's tilt at the state case was blunted in
several respects: first, he founded the attempt
upon affidavit not
open to test by cross-examination and, therefore, less persuasive."
(25)
The position is clearly set out in Gade v. S.
2007 (3) ALL SA 43
NC
and, in my view, it sets out the correct approach:
"The position as
described above was satisfied. The appellant's affidavit was formerly
read into the record by his Counsel
and he was thereafter
cross-examined by the prosecution."
Accordingly an applicant
for bail who merely uses an affidavit in his bail application but
fails to subject himself to cross-examination
thereafter runs the
risk that the Court will find that he or she has failed to discharge
his or her onus. Under such circumstances,
the Court will inevitably
dismiss such bail application.
(26) This is the case in
the current bail application. The applicant, as I have already
indicated somewhere supra, adduced his
evidence by way of an
affidavit. Although he was present in Court during the said bail
application, for inexplicable reasons, he
was never subjected to
cross-examination. Of course he was never cross-examined by the
respondent because he never made himself
available for
cross-examination. No explanation was proffered why the applicant
could not be cross-examined. The result was that
his evidence was
never tested through cross-examination. In the premises the Court
finds that the applicant has failed to discharge
the onus that rested
on him.
(27) I now turn to the
grounds that the applicant relied on in his bail application. It is
not in dispute, and the respondent was
unable to dispute it, that the
fact that the hearing of the trial, which has up to date not been
concluded, was rather too long.
That this was a new ground was
manifested by the fact that it was never a ground or one of the
grounds upon which the application
brought his initial bail
application in 2004. Counsel for the applicant indicated firstly,
that by arguing that the trial was rather
too long and that the
applicant has been in custody since his arrest he did not put the
blame at the door of the respondent.
(28) In his argument
counsel for the applicant referred the Court to the case of Moeketsi
v. Attorney General, Bophuthatswana and
another (1996)3 ALL SA 184(B)
relating to the rights of the applicant in terms of the Constitution.
Section 35 of the Constitution
provides that:
"Every accused
person shall have the right to a fair trial, which shall include the
right-fa) to a public trial before an ordinary
Court of Law within a
reasonable time."
It is indeed so that, in
terms of our law, an accused person, in this case the applicant, is
entitled to a speedy trial. See S.
v. Geritis 1966(1) SA 753 (W)
where Vierya J stated the following at 745D:
"I do not, however,
consider that the distinction moke any difference to the proposition
stated in lackey's case (supra) at
511, by Greenberg JA, that the
decision is one within the discretion of a judicial officer presiding
at the trial and that it must
be a judicial discretion that I venture
to suggest that in exercising such discretion two basic principles
must be borne in mind.
The one is that it is in the interest of
society and accordingly of the State that guilty men should be duly
convicted and not
escape by reason of any oversight or mistake which
can be remedied. The other, no less valid, is that an accused person,
deemed
to be innocent, is entitled, once indicted, to be tried with
expedition."
(29) Counsel for the
applicant correctly pointed out, and he was supported by Counsel for
the respondent, that in order to establish
whether or not the trial
was unduly long, the Court must consider and investigate the
following factors: (1) the length of the
delay and (2) the reasons
for the delay. Indeed in the said authority of Moeketsi the Court
stated that:
"In determining and
assessing the reasonableness between the charge and the trial a Court
takes into account and considers
and scrutinises the following
circumstances and components:
(1) The length of the
delay.
(2) Reasons for the
delay, commission of (i) delays due to the State (H) special
circumstances relating to the case (Hi) delays
in the intrinsic
system of justice (iv) delays brought about by the accused.
(3) Waiver by the
accused. The waiver must be clear and unequivocal, and must be proved
by the State or may be inferred from the
conduct of the case.
(4) Prejudice to the
accused. Under this factor, an ongoing deprivation of liberty,
impairment of the defence evidence, the age
or illness of a witness,
and the passage of time, particularly a long time, are some of the
consideration taken into account."See
p. 208 a-d.
(30) It was argued on
behalf of the respondent that the matter took long because the case
was complex, there were 22 accused involved
in the matter, 161
witnesses who, having testified each was subjected to
cross-examination by accused Counsel, and besides there
were various
applications launched during the trial which had effect of prolonging
the trial. It is clear that the said matter
had not been allocated
any specific time within which to be concluded.
(31)
In his affidavit the investigating officer stated that:
"Die vertroggings in
hierdie soak kon hoofsooklik voor die deur van hierdie applikant en
sy broer Wilhelm Pretorius gele word.
Hulie het die hofse tyd gemors
met verskeie ongefundeerde aonsoeke. Hieronder was 'n totaal
ongegronde aansoek vir rekusering van
die verhoorregter, 'n
uitgerekte aansoek om artikel 174 ontslag ten spyte van oorweidigende
getuienis teen hulie en die aansoek
om krysgevangenestatus wat op sy
eie 5 weke geduur het."
In the circumstances the
delay in the conclusion of the file must be sought in the conduct of
the applicant.
(32) That the applicant
is untrustworthy has not been denied. Accordingly I must accept the
argument put forward by Counsel for
the respondent that the applicant
is unreliable. It would appear that his undertaking that if he is
granted bail he will comply
with any condition the Court may deem fit
to impose cannot be relied upon.
In
the end I am not satisfied that the applicant has discharged his onus
of satisfying this Court that the interests of justice
permit his
release on bail.
Accordingly
I make the following order:
"The
application is refused".
MABUSE
J.
APPEARANCES
Counsel
forthe Applicant: Adv Manie Dempers
Counsel
for the Respondent: Adv Pieter Luyt