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[2011] ZAGPPHC 226
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D.J.V.V and Others v S (A72I/2010) [2011] ZAGPPHC 226; 2012 (2) SACR 492 (GNP) (17 November 2011)
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REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE
NO: A72I/2010
DATE:17/11/2011
IN
THE MATTER BETWEEN
D
J
VV
..........................................................................................................
1st
APPELLANT
A
E V
V
.........................................................................................................
2nd
APPELLANT
M
DA
…......................................................................................................
3rd
APPELLANT
A
T
A
.............................................................................................................
4
th
APPELLANT
J
J
VV
...........................................................................................................
5th
APPELLANT
J
S
MVV
......................................................................................................
6th APPELLANT
G
S
VV
.........................................................................................................
7th
APPELLANT
M
DS
............................................................................................................
8th
APPELLANT
JS
..................................................................................................................
9th
APPELLANT
AND
THE
STATE
.................................................................................................
RESPONDENT
JUDGMENT
LEGODI.
J
[1]
Before me, is an appeal against the refusal of the release on bail of
the eight appellants who appeared in the Regional Court
Wonderboom
Pretoria-North on various charges under the Sexual Offence Act to wit
compelled rape of minor children, sexual assault
of minors, sexual
grooming of minor children, exposing minor children to publications
of sexual nature, of children and benefiting
from child pornography,
ect.
[2]
Initially, eight appellants appeared in the regional court when their
application to be released on bail was refused on 4 January
201 I.
These were appellants one to eight as cited in this appeal. Appellant
nine whose bail application was refused on 6 April
2011 was only
arrested on 26 January. The other eight appellants were arrested on 2
December 2010. Appellant number one has since
withdrawn his appeal
and only the appeal of appellants two to nine was argued before.
[3]
At the start of the hearing of this appeal, counsel for the
respondent was requested to restate the grounds on which the release
of the appellants on bail was objected to in the court a quo. They
were summed up as follows:
3.1
that the appellants if released on bail were likely to influence or
intimidate state witnesses;
3.2
that the appellants if released on bail were likely not to stand
trial;
3.3
that the state case against the appellants is strong and that if
convicted they are likely to be imprisoned;
3.4
and that there was a possibility of the appellants reoffending.
[4]
These appear to be the usual grounds normally raised by the state in
opposing the release of an accused person on bail. For
example,
section 60(4) of the Criminal Proceeding Act 51 of 1977 (hereinafter
referred to as "the Act"), provides as
follows:
"(4)
The interest of justice do not permit the release from detention of
an accused where one or more of the following grounds
are
established:
(a)
Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public or
any
particular person or will commit a Schedule I offence; or
(b)
Where there is the likelihood that the accused, if he or she were
released on bail will attempt to evade his or her trial; or
(c)
Where there is the likelihood that the accused, if he or she were
released on bail, will attempt to influence or intimidate
witnesses
or to conceal or destroy evidence; or
(d)
Where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardize the objectives
or the
proper functioning of the criminal justice system, including the bail
system; (e) Where accused will disturb the public
order or undermine
the public peace or security; or [sic] ”
[5]
It was common cause during the bail proceedings in the court a quo
that the appellants were charged with Schedule 6 offences.
Section
60(l)(a) of the Act provides that notwithstanding any provision of
the Act. where an accused is charged with an offence
referred to in
Schedule 6, the court shall order the accused to 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 interest of justice permit his or
her release.
[6]
The question before me is therefore whether the court a quo erred in
finding that the appellants did not succeed in showing
that there
were exceptional circumstances entitling them to be released on bail.
[7]
An applicant in a bail application is given a broad scope to
establish the requisite circumstances, whether they relate to the
nature of the crime, the personal circumstances of the applicant
(accused) or anything else that is particularly cogent. (See S
v
Dlamini; S v Dladla & Others; S v Joubert, S v Schiet... 1999(2)
SACR 51 (CC) in particular paragraphs [75] and [76] thereof.)
Personal circumstances present to an exceptional degree, may lead to
a finding that release on bail is justified. (See S v Rudolph
2010(
1) SACR 262
(SCA).)
[8]
In the context of section 60(1 l)(a). the exceptionality of the
circumstances must be such as to persuade a court that it would
be in
the interest of justice to order the release of the person of the
accused. A certain measure of flexibility in the judicial
approach to
the question is required. (See S v Mohammed 1999(2) SACR 507 (C) at
513F-515F.)
[9]
It would be futile to attempt to provide a list of possibilities
which will constitute such exceptional circumstances. To incarcerate
an innocent person for an offence which he did not commit could also
be viewed as exceptional. It could not have been the intention
of the
legislature in section 60(4)(a) of the Act. to legitimise at random
the incarceration of persons who are suspected of having
committed
Schedule 6 offences, who. after all. must be regarded as innocent
until proven guilty in a court of law. (See S v Jonas
1998(2) SACR
673 (SEC).)
[10]
The real case argued before me on behalf of the state (the
respondent) is that there is a strong case against the appellants
and
that this could encourage the appellants not to stand their trial, if
released on bail for fear imprisonment. I am saying this
because, the
state did not seriously seek to argue that the appellants are flight
risks.
[11]
The court a quo in its judgment expressed itself in Afrikaans as
follows:
"Die
persoonlike of finansiele omstandighede wat beskuldigdes 1 tot 8 voor
die hof geplaas het is niks anders as die normale
omslandighede van
alle person wat voor die hof verskyn en aansoek doen om borg nie en
dit voel doen beslis nie aan die vereistes
soos gestel in die Hoogste
Hof van Appel in die saak Staat versus Botha en andere 2002 (A) en
daar in, dit is die bekende saak
van 'n paar jaar gelede van die
rugbyspelers van Pietersburg wat gearresteer was vir moord."
[12]
Firstly. 1 do not understand VIVIERS, ADCJ. in that case, as he then
was, as having suggested that those factors set out for
consideration
under section 60(4) ought to be ignored or disregarded under section
60(1 l)(a) in determining the existence or otherwise
of exceptional
circumstances. To ignore personal factors of an applicant under
section 60(11), in my view, would have the effect
of denying an
applicant a reasonable opportunity to adduce evidence to satisfy the
court of the existence of exceptional circumstances.
But even most
importantly, it would be difficult, if not impossible to establish
such exceptional circumstances.
[13]
Secondly, KRIEGLER. J, as he then was. in Dlamini, supra, made it
perfectly clear that such factors are relevant in determining
the
existence of exceptional circumstances. At the risk of repeating
himself, he expressed himself as follows:
“
An
applicant is given broad scope to establish the requisite
circumstances, whether they relate to the nature of the crime, the
personal circumstances of the appellant or anything else that is
particularly cogent. ”
[15]
It is therefore clear from the quotation by the court a quo that it
moved from the wrong premise. In my view, it is the wrong
premise
that made it to concentrate only on the seriousness of the offence
without dealing with the case whether if released on
bail, they would
interfere or intimidate state witnesses or whether their personal
circumstances are such that they would not stand
trial. All the six
victims of crime, the children, at the time of the hearing of the
bail application, were in various places of
safety. Secondly,
statements were taken from them or from most of them. Access to them
was and still is not easy, if not impossible
unless with the
permission by those in charge. For example, there was a suggestion
that at one stage before her arrest, appellant
nine attempted to
contact victim 6. who is her son. Seeking to interfere with
witnesses, who have already made statements to the
police, is
minimised. The potential, for such interference is having less
impact.
[16]
I do not intend dealing with the personal circumstances of each
appellant in detail. It is important to mention that it did
not
appear to have been the state's attitude in the court a quo and also
in this appeal to be that the appellants have the means
to evade
justice or that they attempted to do so, either before their arrest,
during the bail proceedings and thereafter. They
are all South
Africans. Most of them had never been outside the country, neither do
they have passports. They do not have previous
convictions, all of
them. They do not have other pending cases. Their addresses are known
to the police. They have been staying
at their respective places for
a range period of between five, nine months, seven years and fifteen
years.
[17]
Coming back to the strength of the state case against the appellants,
the court a quo much relied on the hearsay evidence of
the
investigating officer and at least a statement made to the police by
the 9 year old son of appellants eight and nine. His evidence
was
seen, as also argued by counsel on behalf of the state in this
appeal, corroborating the investigator's hearsay evidence.
[18]
In paragraph 2 of her statement, the investigating officer stated as
follows:
"Op
2010/10/12 het ek 'n klagte ontvang van verkragting, onsedelike
aanranding, seksuele aanranding, voorbereiding en gereedmaking
tot
seksuele dade (grooming), vervaardiging, besit en verspreiding van
kinder pornografie, die wys van pornografie en kinderpornografie,
bloedskande. Die feite van die saak is dat aangeklaagde nr 1 en 2 was
die pleegouers van twee minderjariges pleegkinders, van die
ouderdomme 5 jaar en 7 jaar, vanaf hulle klein babas was, sedert 2005
en 2006. Die twee kinders was vei’wyder op twee verskillende
datums vanuit die sorg van aangeklaagde 1 en 2 deur die CMR Pretoria,
en was dan geplaas op twee verskillende plekke van veiligheid.
Die
twee kinders het geen kontak sedertdien die plasing plaasgevind het
nie. Beide hinders is gesien deur verskillen.de sielkundiges.
Beide
hinders was deur twee verskillende forensiese sielkundiges. Beide
hinders was deur twee verskillende forensiese sielkundiges
gesien en
verslae is bekom. Beide het ook mediese ondersoeke ondergaan en
volgens die uitslag, was beide kinders seksueel misbruik
vanaf 'n
jong ouderdom. Hulle stories kom ooreen met mekaar, alhoewel hulle
geen kontak met mekaar gehad het nie, of oor die saak
kon gepraat het
met mekaar nie, want hulle was in verskillende plekke van veiligheid.
Daar is verskillende verdagtes wat die kinders
benoem. Deur middel
van die verklaring wat bekom is, word aangeklaagde 1, 2, 7 en 8
ge'impliseer by die uilvoering van verkragling,
onsedelike
aanranding, seksuele aanranding, voorbereiding en gereedmaking tot
seksuele dade (grooming), vervaardiging, besit en
verspreiding van
kinder pornografie, die wys van pornografie en kinderpornografie,
bloedskande. Aangeklaagde 3 en 4 word ge'impliseer
vir die
voorbereiding en gereedmaking tot seksuele dade (grooming), deur
middel van dat hulle seksuele dade voor die kinders gedoen
het. Hulle
is ook in besit van self gemaakte kinderpornografie. Aangeklaagde 5
en 6 word ge'impliseer vir die voorbereiding en
gereedmaking lot
seksuele dade (grooming), deur middel van dat hulle seksuele dade
voor die kinders gedoen het. Die twee aangeklaagdes
was ook
teenwoordig gedurende die pleeg van seksuele dade deur die kinders,
waar hulle die kinders aangese het wat om te doen,
gedurende die maak
van die films. Alle aangeklaagdes 1-8 is ook geimpliseer deur dat
hulle mededaders, medepligtiges en begunstigdes."
[19]
In so far as direct evidence is concerned, the state appears to be
intending to rely during the trial, on the evidence of very
young
children. Aged 5 and 7 years at the time the statements were taken,
in my view, suggest not an easy ride for the state during
trial. I am
talking here about victims 1 and 2 who were removed from appellants
one and two. Assuming that their evidence collapses
during trial
through questioning, the state would be bound to rely on
circumstantial evidence based on expert witnesses regarding
professional or medically physical or psychological examinations of
the victims. This may not be an easy mountain to climb, where
the
state has to prove their case beyond reasonable doubt.
[20]
Few items were seized from the premises of appellants one to four. At
the time of the bail application, some of these items
were still sent
for forensic examination. It is not clear from the statement of the
investigating officer as to what kind of items
were so seized as a
whole.
[21]
Further in her statement, commissioned on 6 December 2010. the
investigating officer slates as follows:
"Alle
elektroniese bewysstukke is by die forensiese en inlelligensie
rekenaar eenheid ingehandig vir analisering. Voiledige
verslag word
afgewag. 'n Groot mate van video's is ook gekonfiskeer en word tans
deur ondersoekbeampte gekyk. Daar was sover 'n
paar nakende foto's
van 'n klein, minderjarige kind gevind, waarvan die geslagsdele
getoon word. Daar was ook ’n handgemaakte
vuurwapen gevind in
die huis van beskuldigde 1 se huis gevind wat na die ballistiese
afdeling van die forensiese eenheid gestuur
is van die SAPD."
[22]
In my view, this statement cannot be regarded as making a strong case
against the appellants. The least one can say about it,
is that at
the time of the bail application, investigation was still incomplete.
But, what is important, there was no suggestion
that the appellants
will tamper with such investigation or information still outstanding.
[23]
At the risk of repeating himself, in paragraph 3 of the investigating
officer's statement, he deals with all the first to the
eighth
appellants as follows:
"Ek
het die beskuldigde se persoonlike besonderhede nagegaan en die
volgende gevind:
3.1
Identiteit dokumenle van beskuldigdes Alle beskuldigdes het 'n ID
dokument
3.2.1
Burgerskap
Alle
beskuldigdes is RSA burgers
3.2.2
Vorige reise buite RSA Geen
3.2.3
Familie buite RSA
Geen
3.2.4
Besi (lings bui/e RSA Geen."
[24]
This information makes the chances of the appellants leaving the
country to be very minimal. By the way, appellants one and
two are
husband and wife. They have both been staying at Plot 62 Juliet
Street, Lusthof, Pretoria as husband and wife for a period
of over
fifteen years.
[25]
Appellants 3 and 4 are husband and wife. They were staying together
at House 5, Plot 187 Witstinkhoutboom, Bultfontein, Pretoria.
It is a
rented house and have been staying there for a period of over five
months. Appellants five and six are also husband and
wife and the two
were staying at Plot 33. Bultfontein, Pretoria. It is a rented place
and having been so rented for a period of
over nine months. Appellant
seven who is unmarried is also staying at the same place as
appellants five and six. Appellants eight
and nine as I said earlier
in this judgment, are also husband and wife. They were staying at
Plot 62 Juliet Street and have been
staying there for a period of
over seven years.
[26]
Appellant nine is the daughter of appellants one and two and
appellant eight is their son-in-law.
[27]
What was referred to in this appeal as victims one and two were the
intended adopted children of appellants one and two and
had been
staying with them for years. As I said earlier, victim six is the son
of appellants eight and nine.
[28]
Coming back to the strength of the evidence against the appellants,
in the bail application, the state relied on the direct
evidence of
victim six as he was referred to in these proceedings, particularly
with regard to appellant nine during her bail application.
His
evidence is contained in a typed statement consisting of four and a
half pages. The statement was deposed to on 28 March 201
I. That is.
after the application of appellants one to eight was refused.
Remember, the bail application of his mother, appellant
nine, was
refused on 6 April 201 1 after she was arrested on 26 January 2011.
[29]
Perhaps. 1 should just start with the allegation that was made
against appellant nine. The suggestion was that even after an
attempt
to have contact with victim six, there was still no justification to
refuse her release on bail. I agree. How do you expect
a mother of a
nine year old child not to want to see her child, particularly that
at the time she was not accused of anything.
[30]
The statement of victim six having been deposed to on 28 March 2011.
It could not have been relied upon as evidence on which
the bail
application of the first to eighth appellants that was refused on 4
January 2011. It therefore appears that in refusal
of the bail
application of first to eighth appellants was, solely based on the
hearsay evidence of the investigating officer and
on the
circumstantial evidence of Dr Zylinga with regard to victim two. In
its judgment, with regard to the bail application of
appellants one
to eight, the court a quo expressed itself in Afrikaans as follows:
"As
ons kyk na die staat se saak, die staat steun op verklarings van die
twee kinders wat verwyder is van beskuldigde 1 en
2 en by
verskillende plekke aangehou en geplaas is na die vewydering en nie
met mekaar kontak gehad het nie.
Hulle
staaf mekaar se verklarings en beide verskaf baie fyn detail ten
opsigte van hoe, waar en wanneer die verkragtings plaasgevind
het.
Beide is ook onafhanklik deur verskillende deskundiges geassesseer en
beide se assessering bevestig die klagtes. Daar is ook
mediese
verslae by die verkragtings bevestig. Slegs beskuldigde 1 en 2 het
getuig. Hulle is reeds deur die hof vandag hierso as
ongeloofwaardig
bevind.”
[31]
Remember victims one and two referred to in the quotation did not
testify, neither were their statements handed in. It was
the evidence
of the investigating officer that was relied upon. For example, in
his statement and at the risk of repeating myself,
she stated as
follows:
"Daar
is verskillende verdagtes wat die kinders benoem. Deur middel van die
verklaring wat bekom is, word aangeklaagde 1, 2,
7 en 8 geimpliseer
by die uitvoering van verkragting, onsedelike aanranding, seksuele
aanranding, voorbereiding en gereedmaking
tot seksuele dade
(grooming), vei'vaardiging, besit en verspreiding van
kinderpornografie, die wys van pornografie, en kinderpornografie,
bloedskande."
[32]
This was in so far as it went against appellants 1, 2, 7 and 8. The
particulars of such accusations against each of the appellants
are
not set out. There was a suggestion that the state will in respect of
the appellants rely on the principle of common purpose.
That may be
so, and even in that event, one needs to articulate in evidence the
actions of each appellant to bring each one of
them within the
principle of common purpose. Their involvements as quoted above are
worded in general terms. Bearing in mind that
one for direct evidence
relies on the evidence of young children, I do not think that the
evidence can be said to exclude any innocence
on the part of the
respective appellants. Remember, all the appellants were to be
presumed innocent until the contrary is proved.
This is a reminder,
that even where the evidence appears to be strong, one should still
be mindful of the fact that you do not
have to deal with the bail
application, as if their guilt has already been proved.
[33]
Prima facie evidence is subject to be tested during trial. The impact
of such prim a facie evidence in a bail application,
should be seen
to be minimised by lack of evidence of the likelihood that if
released on bail, the accussed will attempt to influence
or
intimidate witnesses or to attempt or destroy evidence. I dealt with
this aspect earlier in this judgment. No such a suggestion
against
the appellants was made. In any event, witnesses are safe, statements
have been taken from witnesses, and there was no
suggestion that the
police were in pursuit of other exhibits. The likelihood of any of
the appellants to evade trial other than
to suggest a strong case,
was not established.
[34]
As far as appellants three and four arc concerned, the evidence of
the investigating officer went around like, and I am doing
this at
the risk of repeating myself:
"Aangeklaagde
3 en 4 word geimpliseer vir die voorbereiding en gereedmaking tot
seksuele dade (grooming) deur middel van dal
hulle dude voor die
kinders gedoen het."
[35]
The extent to which they have been implicated is not outlined.
Bearing in mind that this was a statement by a person not having
personal knowledge thereof, one should still be guided by the
principle that they are presumed innocent until the contrary is
proved. Similarly, with regards to appellants five and six.
allegations against them are coached in similar fashion.
[36]
Dr Zylinga who was called by the first and second appellants
indicated that victims one and two who were initially in the care
of
the two appellants, depicted some form of sexual molesting and that
it showed recent occurrences. This may tend to showprima
facie
evidence against the two appellants. But again, the issue is, this
alone would not serve to show that they would not stand
trial. They
had been staying at their places before their arrest for a period of
about seventeen years. As indicated by the investigating
officer,
they have no passports, no previous convictions and no attempt before
their arrest to evade justice.
[37]
Coming back to the evidence of victim six, he was assessed
forensically. First, on 9 December 2010 and on 14 January 2011,
15
February 2011 and 15 March 2011. Remember, he deposed to a statement
on 28 March 2011. Apparently as a result thereof, appellant
nine was
arrested. His statement seems to detail the actions of appellants
one, two, eight and nine in the commission of the offences
levelled
against them. These details were not taken into account when the bail
application by appellants one to eight was refused.
For the purpose
of this appeal, the details to which the first to eighth appellants
had not been preview to, during the bail application
in the court a
quo, cannot be used against them in this appeal.
[38]
I may however mention that the first appellant who has since
withdrawn his appeal, is seriously implicated in the statement.
Appellant nine in her evidence during the bail application sought to
deal with the allegations made against her and also revealed
her
personal circumstances.
[39]
She was working as a manager at a certain supermarket in
Hammanskraal. She had been working for almost eleven years until her
arrest in January 201 1. She was earning Rll 000,00 per month. At the
time of the bail application, her employer had already visited
her in
prison and she was assured of the security of her job despite pending
case.
[40]
She in more detail dealt with inter-relationships amongst the
appellants. She is the biological daughter of appellant two.
Appellant one is her stepfather since she was still about 3 years
old. Appellant three is her brother. Appellant four is the wife
of
appellant three. Appellants three and four had two children at the
time of the bail application, aged about 4 and 8 years respectively.
These children have also been placed at a place of safety. These
children were referred to in these proceedings as victims 3 and
4.
Appellant five is the brother to her stepfather (appellant one).
Appellant six, is appellant five's wife. Appellants five and
six have
a child about 13 years old, who has also been taken to a place of
safety. She is victim 5. Appellant seven is apparently
the son to
appellant five.
[41]
Appellant nine denied all the allegations leveled against her. She
also denied her role as set out in her son's statement.
She was
cross-examined at length on the allegations made by her son. In my
view, she sustained the fierce cross- examination and
nothing
particular in her evidence to suggest unreliability. Her denial in
this regard must also be seen in the light of the fact
that despite
the fact that victim 6, that is appellant nine's son, was assessed or
interviewed on 9 December 2010, 14 January 2011,
15 February 2011 and
1 March 2011, only after 1 March 2011, did he make a statement and
only thereafter was appellant nine arrested.
It appears therefore
that until up to 28 March 2011 when victim six made a statement, he
had not implicated appellant nine, otherwise
appellant nine would
long have been arrested, possibly with the rest of the people when
they were arrested on 2 December 2010.
I am mentioning all of these,
because the issue is whether the state has a strong case against
appellant nine. Even if they had,
the issue is whether or not she
will stand trial.
[42]
The rest of the appellants having been arrested on 2 December 2010,
in her presence, she remained where she has been staying
with some
other people. She apparently continued to go to work. If she was
convinced that she was involved in the commission of
these offences
and she was a flight risk, she would have attempted to evade justice
by disappearing prior to her arrest. Her conduct
is not consistent
with a person who is a flight risk.
[43]
On 16 March 2011, the investigating officer deposed to an affidavit
dealing with appellant nine. She refers to the previous
assessment on
victim six. She also testified about victim six and statements of
other witnesses. I may mention that in terms of
the statement of
victim six, appellant nine is the less implicated person.
[44]
I am not satisfied that the court a quo was correct in finding that
the appellants did not establish the existence of exceptional
circumstances. Just before I conclude, there are other two issues I
want to deal with. First it is the suggestion that the appellants
may
reoffend. To come to this conclusion, one needs to ignore the
suggestion that this is said to be a family syndicate that is
alleged
to have used their children as the subjects for pornographic
materials and for unlawful sexual activities. You need to
ignore the
fact that these children are at places of safety. The fact that all
the appellants have now been charged with these
unlawful activities
is not immaterial to the question whether or not they will reoffend.
The fear should be seen to have been minimised
by the fact that if it
happened, it is now in the open. You need someone courageous to
continue with similar offences. Therefore,
the likelihood of
reoffending in these circumstances is very minimal, especially seen
in the light of the fact that there was no
evidence that the
commission and means thereof went beyond family unit. That is, that
they could easily find other victims to use
in the commission of
similar offences.
[45]
In its judgment the court a quo sought to explain how public interest
in a particular case should not be allowed to dictate
to our courts
what to do in a particular case. Perhaps it needs some sort of
education to dispel any perception the public might
have in a
particular case or circumstances. As correctly pointed out by the
court a quo and in other cases, in a bail application
the issues are
dealt with on the basis that it is not much about the guilt or
otherwise of an applicant in a bail application,
but rather like in
the present case, whether the appellants should have been found to
have established exceptional circumstances
that their release on bail
would not interfere or jeopardise the interest of justice.
[46]
Section 60(4)(c) of the Act provides that the interests of justice do
not permit the release from detention of an accused where
there is
the likelihood that the accused, if he or she were released on bail,
will undermine or jeopardise the objectives or the
proper functioning
of criminal justice system, including the bail system. Subsection (7)
deals with what is envisaged in subsection
(4)(c). Subsection (7) of
section 60 provides as follows:
"(7)in
considering whether the ground in subsection (4) (c) has been
established, the court may, where applicable, lake into
account the
following factors, namely-
(a)
The fact that the accused is familiar with the identity of witnesses
and with the evidence which they may bring against him
or her;
(b)
Whether the witnesses have already made statements and agree to
testify;
(c)
Whether the investigation against the accuse has already been
completed;
(d)
The relationship of the accused with the various witnesses and the
extent to which they could be influenced or intimidated;
(e)
How effective and enforceable bail conditions prohibiting
communication between the accused and witnesses are likely to be;
(f)
Whether the acused has access to evidentiaiy material which is to be
presented at his or her trial;
(g)
The ease with which evidentiaiy material could be concealed or
destroyed; or
(h)
Any other factors which in the opinion of the court should be taken
into account. ”
[47]
In a way, I have already dealt with factors tabulated under
subsection (7) and I do not find it necessary to repeat myself
in one
way or the other.
Subsection
(8A) of section 60 deals with what is envisaged in section 60(4)(e)
of the Act. By the way, it provides that interests
of justice do not
permit the release from detention of an accused where in exceptional
circumstances there is the likelihood that
the release of the accused
will disturb the public order or undermine the public peace or
security. I have to deal with this, because
of what was contended by
the appellants' counsel in his written heads of argument. He started
on the issue by stating as follows
in paragraph 3 of the written
heads of argument:
"The
case against the appellants are highly publicized in the media and
was the allegation made that the appellants, who are
all related to
each other, were exposed as being members of a so-called 'child
pornography syndicate'. It is also alleged that
they are guilty of
offences relating to the sexual assault, grooming of making of
explicit sexual photography and/or films containing
child
pornography, and also sexual acts performed by adults in the presence
of minor children."
[48]
Having said this, in paragraph 19.5 of the heads of argument he
concluded on the issue as follows:
"It
appears that the learned magistrate although staling that he was not
in any way influenced by public opinion were carried
away with the
allegations which are of a very serious nature. The fact that the
case are of a high profile and widely publicized
in the printed media
as well as on television appeared to have influenced the magistrate
not to apply his mind with regard to the
general principles
applicable in a bail application.
[49]
Subsection (8A) provides as follows:
"(8A)
In considering whether the ground in subsection (4) (e) has been
established, the court may, where applicable, take into
account the
following factors, namely-
(a)
Whether the nature of the offence or the circumstances under which
the offence was committed is likely to induce a sense of
shock or
outrage in the community where the offence was committed;
(b)
Whether the shock or outrage of the community might lead to public
disorder if the accused is released;
(c)
Whether the safety of the accused might be jeopardized by hir or her
release;
(d)
Whether the sense of peace and security among members of the public
will be undermined or jeopardized by the release of the
accused;
(e)
Whether the release of the accused will undermine or jeopardize the
public confidence in the criminal justice system; or
(f)
Any other factor in the opinion of the court should be taken into
account. ”
[50]
It is clear from the provisions of subsection (4)(e) that only in
very exceptional circumstances would a court consider the
likelihood
of disturbance, public order and undermining of the public peace or
security. Factors in this regard and enumerated
in subsection (8A)
had not been established negatively to the appellants to have
justified the refusal of the release of the appellants
on bail.
[51]
Although this aspect was not argued by the state before me, I am just
dealing with it, in case there might be a perception
with regard to
the order I intend making hereunder. I have deliberately quoted the
specific sections in this regard as an educational
measure to any
person who might have to read this judgment. Subsection (9) provides
that in considering the question in subsection
(4), the court shall
decide the matter weighing the interests of justice against the right
of the accused to his or her freedom
and in particular, the prejudice
he or she is likely to suffer if he or she were to be detained in
custody taking into account
where applicable the following factors:
"(a)
the period for which the accused has already been in custody since or
her arrest;
(b)
the probable period of detention until the disposal or conclusion of
the trial if the accused is not released on bail;
(c)
the reason for any delay in the disposal or conclusion of the trial
and any fault on the part of the accused with regard to
such delay;
(d)
any financial loss which the accused may suffer owing to his or her
detention;
(e)
any impediment to the preparation of the accused’s defense or
any delay in obtaining legal representation which may be
brought
about by the detention of the accused;
(f)
the state of health of the accused; or
(g)
any other factor which in the opinion of the court should be taken
into account. ”
[52]
To suggest that any of these factors do not have to be taken into
account, where an applicant in a bail application under Schedule
6,
faces a hurdle to establish the existence of exceptional
circumstances, in my view, would amount to summarily refusal to
release
an applicant under section 60.
[53]
It has been made clear when the appeal was argued and I want to
assume that it was also clear to the court a quo that the main
case
in this matter is likely to be finalised after many years. For
example, it has not started yet. The suggestion that there
are more
than hundred charges to be preferred against the appellants serve to
indicate, unless the appellants are released on bail,
they stand to
remain in custody for many years to come before their case is
finalised. The court a quo did not seem to have considered
this
aspect, in my view, incorrectly so.
[54]
I am satisfied that the appellants during their respective bail
applications succeeded in showing that they are not flight
risk, that
other than the offence they are presently facing, they had been law
abiding citizens and thus dispelling the idea of
reoffending, that
their incarceration would deprive them of earning a living and that
the likelihood of interfering, intimidating
or influencing state
witnesses was almost zero regard been had to the fact that the
witnesses are kept in places of safety, and
have made statements,
ect.
[55]
Bail conditions have always served to ensure that whatever fear the
state might have in the release of an accused person is
taken care
of. It is a necessary consideration as also envisaged in section
60(6) which provides that in considering whether the
ground in
subsection (4)(b) has been established, the court may, where
applicable, take into account the binding effect and enforceability
of bail conditions which may be imposed and the ease with which such
conditions could be breached.
[56]
Can a condition that the appellants should not communicate with state
witnesses be easily breached? Of course not. Can the
appellants
easily abscond and evade justice? 1 do not think so. But even most
importantly, strict reporting conditions can serve
the purpose. When
I reserved judgment in this matter, I requested both counsel to go
and agree on possible bail conditions in the
event this court was to
uphold the appeal. A draft order in this regard was submitted to the
Registrar and it reads as follows:
"1.
The appeal is upheld.
2.
Bail is granted to Appellant 2 to 9 in the amount of R10 000,00 on
the following conditions:
2.1
The Appellants must attend Court at all times up and until
finalisation of the trial.
2.2
The Appellants must report twice daily between the hours of 06h00 and
09h00 and 18h00 to 21h00 at the Hammanskraal Police Station.
2.3
The Appellant may not have any contact, communication directly or
indirectly with any of the State witnesses.
2.4
The Appellants may not leave the jurisdiction of the Regional Court,
Pretoria North (Gauteng) without the prior permission of
the
Investigating Officer of the case.
[57]
I do not know whether both the defence and state participated in this
draft. It is, however, helpful with regard to the proposed
reporting
conditions. The rest are usual bail conditions. I am mindful of the
fact that appellants 3, 4, 6 and 7 were staying at
rented places
before their arrest. An appropriate order in this regard would be
made later in this judgment. It suffices to mention
that an address
where they would be living be furnished to the investigating officer
before they are allowed to be released from
custody. Secondly 2.4 as
indicated in the draft order, is too wide. Restriction to magisterial
district of Wonderboom, Pretoria-
North, in my view, would be
appropriate in the circumstances of the case.
[58]
Consequently an order is hereby made as follows:
58.1
Appellant one's withdrawal of the appeal is noted.
58.2
The appeal against the refusal of release on bail in respect of
appellants two to nine is hereby upheld and the decision refusing
the
bail application is hereby set aside and substituted as follows:
58.2.1
Accused two to nine are hereby each granted bail in the amount of R15
000,00 on the following conditions:
58.2.1.1
that the accused 2 to 9 must attend court on all remand dates;
58.2.1.2
that accused two to nine must report twice daily between the hours of
06:00 and 09:00 and 18:00 to 21:00 at the Hammanskraal
police
station;
58.2.1.3
that accused two to nine may not have any contact or communication,
directly or indirectly, with any of the state witnesses;
58.2.1.4
that accused two to nine may not leave the magisterial of Wonderboom
Pretoria North save for A the purpose of reporting
at Hammanskraal
police station and/or save with the written permission of the
investigating officer in this matter;
58.2.1.5
accused three, four, five, six and seven are hereby ordered to
furnish the investigating officer before their release with
physical
address where they would be staying pending finalisation of the main
case.
58.2.1.6
The Appellants 2 to 9 will notify the Investigating officer of any
changes of their addresses and such notification to
be given at least
seven days before moving out of the known addresses to the
investigating officer.
58.3
The investigating officer is hereby forthwith directed to furnish the
station commissioner of Hammanskraal police station with
the court
order herein.
58.4
The station commissioner of Hammanskraal police station or any person
designated thereto by the station commissioner Hammanskraal
police
station, is hereby directed to immediately inform the investigating
officer should any of the accused herein default in
reporting as set
out in 58.2.1.2 above.
M
F LEGODI
JUDGE
OF THE NORTH GAUTENG HIGH COURT